exv10w1






Exhibit 10.1




LEASE




BETWEEN




MSCP CROSBY, LLC,

as Landlord




AND




ACME PACKET, INC.,

as Tenant




Dated: November 23, 2009




Property Address: 100 Crosby Drive, Bedford, Massachusetts




Execution Copy




 









 




TABLE OF CONTENTS



	 	 	 	 	 
	ARTICLE 1. PREMISES AND TERM
	 	 	3	 
	 
	 	 	 	 
	1.1. Premises
	 	 	3	 
	1.1.1. Tenant’s Right to Use, in Common with Others, the Common Areas;
Rights Reserved to Landlord
	 	 	3	 
	1.1.2. Expansion Option
	 	 	4	 
	1.1.3. Right of First Refusal
	 	 	5	 
	1.1.4. Right of First Offer
	 	 	6	 
	1.2. Licenses and Other Rights
	 	 	7	 
	1.2.1. Parking Rights
	 	 	7	 
	1.2.2. Generator
	 	 	8	 
	1.2.3. Rooftop Equipments
	 	 	9	 
	1.2.4. Right to Install Security Cameras in Parking Areas
	 	 	10	 
	1.3. Condition of Premises
	 	 	10	 
	1.3.1. Condition of Premises at Lease Execution
	 	 	10	 
	1.3.2. Acceptance of Premises
	 	 	10	 
	1.3.3. Tenant Work
	 	 	10	 
	1.3.4. Initial Tenant Improvements — Landlord’s Work
	 	 	11	 
	1.3.5. Base Building Work
	 	 	11	 
	1.3.6. Fourth Floor Stairwell
	 	 	11	 
	1.4 Term and Termination Date
	 	 	12	 
	1.4.1. Term
	 	 	12	 
	1.4.1.1 Extension Term
	 	 	12	 
	1.4.2. Yield Up
	 	 	13	 
	1.4.3. Delay in Possession
	 	 	13	 
	1.5. Landlord’s Additional Reserved Rights
	 	 	14	 
	 
	 	 	 	 
	ARTICLE 2. RENT AND SECURITY
	 	 	15	 
	 
	 	 	 	 
	2.1. Rent
	 	 	15	 
	2.2. Components of Rent
	 	 	15	 
	2.2.1. Monthly Base Rent
	 	 	16	 
	2.2.2. Additional Rent
	 	 	16	 
	2.2.2.1 “Operating Expenses”
	 	 	16	 
	2.2.2.2 “Taxes”
	 	 	19	 
	2.2.2.3 Payment of Estimated Additional Rent
	 	 	20	 
	2.2.2.4 Reconciliation of Additional Rent
	 	 	20	 
	2.2.2.5 Inspection of Records
	 	 	20	 
	2.2.3. Electricity
	 	 	21	 
	2.3. Agreements Concerning Payment
	 	 	22	 
	2.3.1. No Accord and Satisfaction
	 	 	22	 
	2.4. Interest; Late Charges
	 	 	22	 
	2.5. Holdover Rent
	 	 	22	 
	2.6. Letter of Credit
	 	 	23	 
	2.7. Deferred Rent
	 	 	23	 
	 
	 	 	 	 
	ARTICLE 3. TENANT’S COVENANTS
	 	 	24	 
	 
	 	 	 	 
	3.1. Use
	 	 	24	 





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TABLE OF CONTENTS



	 	 	 	 	 
	3.1.1. Use and Compliance with Legal Requirements and with Rules and
Regulations
	 	 	24	 
	3.1.2. Permitted Use
	 	 	24	 
	3.1.3. Floor Loading; Noise and Vibration
	 	 	24	 
	3.2. Observe Rules and Regulations
	 	 	24	 
	3.3. Hazardous Material
	 	 	25	 
	3.4 Maintenance and Repair
	 	 	25	 
	3.5. Alterations
	 	 	25	 
	3.5.1. Alterations Prohibited Without Landlord Consent
	 	 	25	 
	3.5.2. ADA Compliance
	 	 	26	 
	3.6. Heating, Ventilation and Cooling
	 	 	26	 
	3.7. Tenant’s Property
	 	 	26	 
	3.8. Assignment and Subletting
	 	 	26	 
	3.8.1. “Transfer” Defined
	 	 	27	 
	3.8.2. No Transfer Without Consent
	 	 	27	 
	3.8.3. When Consent Granted
	 	 	28	 
	3.8.4. Affiliated Transfer
	 	 	28	 
	3.8.5. Procedure for Obtaining Consent
	 	 	28	 
	3.8.6. Intentionally Deleted
	 	 	29	 
	3.8.7. Effect of Transfer
	 	 	29	 
	3.8.8. Costs
	 	 	29	 
	3.9. Insurance
	 	 	29	 
	3.9.1. Coverages
	 	 	29	 
	3.9.2. General Provisions Relating to Insurance
	 	 	30	 
	3.10. Indemnity
	 	 	30	 
	3.11. Waiver
	 	 	30	 
	3.12. No Liens
	 	 	31	 
	3.13. Intentionally Deleted
	 	 	31	 
	3.14. Taxes on Tenant’s Personal Property
	 	 	31	 
	3.15. Signage
	 	 	31	 
	3.16. Reimbursement for Costs of Repairs to the Building and/or Land
	 	 	32	 
	3.17. ERISA Certificate
	 	 	32	 
	3.18. Notice of Accidents
	 	 	32	 
	 
	 	 	 	 
	ARTICLE 4. LANDLORD’S COVENANTS
	 	 	32	 
	 
	 	 	 	 
	4.1. Provision of Utilities and Services
	 	 	32	 
	4.1.1 Electricity
	 	 	32	 
	4.1.2. HVAC
	 	 	32	 
	4.1.3. Chilled Water
	 	 	32	 
	4.1.4. Elevator Service
	 	 	33	 
	4.1.5. Loading Dock and Freight Elevator
	 	 	33	 
	4.2. Cleaning/Refuse Removal Services
	 	 	33	 
	4.3. Access
	 	 	33	 
	4.4. Maintenance and Repair of Common Areas
	 	 	33	 
	4.5. Insurance
	 	 	33	 
	4.6. Quiet Enjoyment
	 	 	34	 
	4.7. No Liability for Interruptions
	 	 	34	 
	4.8. Costs and Expenses of Services
	 	 	34	 




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TABLE OF CONTENTS



	 	 	 	 	 
	ARTICLE 5. CASUALTY AND CONDEMNATION
	 	 	35	 
	 
	 	 	 	 
	5.1. Casualty
	 	 	35	 
	5.1.1. Option to Terminate and Not to Restore
	 	 	35	 
	5.1.2. Application of Insurance Proceeds
	 	 	35	 
	5.1.3. Landlord’s Work
	 	 	35	 
	5.1.4. Mutual Right to Terminate
	 	 	35	 
	5.1.5. Repair and Restoration of Tenant’s Personal Property, Tenant’s Work
and any Tenant Alterations
	 	 	35	 
	5.1.6. Rent Abatement
	 	 	36	 
	5.2. Condemnation
	 	 	36	 
	5.2.1. Application of Condemnation Award
	 	 	36	 
	 
	 	 	 	 
	ARTICLE 6. DEFAULT
	 	 	37	 
	 
	 	 	 	 
	6.1. Events of Default
	 	 	37	 
	6.2. Remedies for Default
	 	 	37	 
	6.2.1. Entry/Termination
	 	 	37	 
	6.2.2. Releasing
	 	 	37	 
	6.2.3. Damages
	 	 	38	 
	6.2.4. Landlord’s Right to Cure
	 	 	38	 
	6.2.5. Cumulative Remedies
	 	 	38	 
	6.2.6. No Waiver
	 	 	38	 
	6.2.7. Agreements Applicable to Tenant’s Bankruptcy
	 	 	39	 
	6.3. Landlord Default
	 	 	39	 
	 
	 	 	 	 
	ARTICLE
7. PROTECTION OF LENDERS
	 	 	40	 
	 
	 	 	 	 
	7.1. Subordination and Attornment
	 	 	40	 
	7.2. Estoppel Certificates
	 	 	40	 
	 
	 	 	 	 
	ARTICLE
8. GENERAL PROVISIONS
	 	 	41	 
	 
	 	 	 	 
	8.1. Tenant’s Organization, Authority
	 	 	41	 
	8.2. Brokers
	 	 	41	 
	8.3. Tender of Lease Not an Offer to Lease; Execution and Delivery
	 	 	41	 
	8.4. Force Majeure
	 	 	41	 
	8.5. No Surrender
	 	 	41	 
	8.6. Joint and Several Liability
	 	 	42	 
	8.7. Legal Costs and Expenses; Prevailing Party
	 	 	42	 
	8.8. Limitation of Landlord’s Liability
	 	 	42	 
	8.9. Limitation of Tenant’s Liability
	 	 	42	 
	8.10. No Recording of Lease
	 	 	42	 
	8.11. Notices
	 	 	42	 
	8.12. Tenant’s Financing
	 	 	42	 
	8.13. Waiver of Subrogation
	 	 	43	 
	8.14. Miscellaneous
	 	 	43	 
	8.14.1. Entire Agreement
	 	 	43	 
	8.14.2. Governing Law; Severability; Rules of Construction
	 	 	43	 
	8.14.3. Binding Effect; Successors and Assigns; No Third Party Beneficiaries
	 	 	43	 
	8.14.4. Survival
	 	 	44	 




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TABLE OF CONTENTS



	 	 	 	 	 
	8.14.5. Time is of the Essence
	 	 	44	 
	8.14.6. Waiver of Jury Trial; Consent by Tenant to Jurisdiction and Venue
	 	 	44	 





	 	 	 	 	 
	APPENDIX 1.1A PLAN OF PREMISES
	 	 	A-1	 
	APPENDIX 1.1B LEGAL DESCRIPTION
	 	 	A-5	 
	APPENDIX 1.1C SITE PLAN
	 	 	A-7	 
	APPENDIX 1.1.1 RULES AND REGULATIONS
	 	 	A-8	 
	APPENDIX 1.1.2 OPTION SPACE
	 	 	A-10	 
	APPENDIX 1.3.3 TENANT’S WORK AND ALTERATIONS
	 	 	A-12	 
	APPENDIX 1.3.3.A WORK INSURANCE SCHEDULE
	 	 	A-15	 
	APPENDIX 1.3.4 TENANT IMPROVEMENTS — LANDLORD’S WORK
	 	 	A-17	 
	SCHEDULE 1 — SPACE PLAN
	 	 	A-20	 
	SCHEDULE 2 — DESCRIPTION OF LANDSCAPING WORK AND EXTERIOR CLEANING
	 	 	A-29	 
	APPENDIX 2.6.2 — FORM OF LETTER OF CREDIT
	 	 	A-33	 
	APPENDIX 4.2 — CLEANING SPECIFICATIONS
	 	 	A-38	 
	APPENDIX 7.1 — FORM OF SNDA
	 	 	A-40	 




iv







 





     This Lease (the “Lease”) is made as of November 23, 2009 by and between Landlord and
Tenant for space in the Building.



SCHEDULE OF INCORPORATED TERMS




     The following schedule (the “Schedule of Incorporated Terms”) sets forth certain basic
terms of this Lease. Unless otherwise defined, each term below has the meaning given to it in this
Schedule of Incorporated Terms, and such meaning applies in each instance where such term appears
in the body of the Lease.



PARTIES




	 	 	 
	Landlord:

	 	MSCP Crosby, LLC, a Delaware limited liability company
	 
	 	 
	Address of Landlord:

	 	c/o Divco West Real Estate Services, Inc.
	 

	 	575 Market Street, 35th Floor
	 

	 	San Francisco, CA 94105
	 

	 	Attn: Asset Management
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	c/o Divco West Real Estate Services, Inc.
	 

	 	200 Fifth Avenue, First Floor
	 

	 	Waltham, MA 02451
	 
	 	 
	Tenant:

	 	Acme Packet, Inc., a Delaware corporation
	 
	 	 
	Address of Tenant:

	 	Prior to the Lease Commencement Date:
	 
	 	 
	 

	 	71 Third Avenue
	 

	 	Burlington, MA 01803
	 

	 	Attention: Mr. Robert G. Ory
	 
	 	 
	 

	 	With a copy to:
	 
	 	 
	 

	 	Bingham McCutchen LLP
	 

	 	One Federal Street
	 

	 	Boston, Massachusetts 02110-1726
	 

	 	Attention: Edward A. Saxe, Esq.
	 
	 	 
	 

	 	From and after the Lease Commencement Date:
	 
	 	 
	 

	 	The address of the Premises
	 
	 	 
	 

	 	With a copy to:
	 
	 	 
	 

	 	Bingham McCutchen LLP
	 

	 	One Federal Street
	 

	 	Boston, Massachusetts 02110-1726
	 

	 	Attention: Edward A. Saxe, Esq.






 









 






	 	 	 
	Broker:

	 	Landlord’s representative:
	 
	 	 
	 

	 	Richards Barry Joyce Partners, LLC
	 

	 	53 State Street
	 

	 	Boston, MA 02109
	 

	 	Attn: John Wilson
	 
	 	 
	 

	 	Tenant’s representative:
	 
	 	 
	 

	 	Grubb & Ellis
	 

	 	200 State Street
	 

	 	Boston, MA 02109
	 

	 	Attention: Bradford A. Spencer, Senior Vice President
	 
	 	 
	 

	 	     PREMISES AND TERM
	 
	 	 
	Premises:

	 	Approximately 1,787 rentable square feet of floor
area located on the first (1st) floor
of the east tower of the Building, 33,506
rentable square feet of floor area located on the
second (2nd) floor of the east tower
of the Building, approximately 53,583 rentable
square feet of floor area located on the third
(3rd) floor of the east tower of the
Building, and approximately 34,912 rentable
square feet of floor area located on the fourth
(4th) floor of the east tower of
Building, all as generally shown on the plans
attached hereto as Appendix 1.1A and incorporated
herein by this reference. The total rentable
square footage of the Premises is approximately
One Hundred Twenty-Three Thousand Seven Hundred
Eighty-Eight (123,788) rentable square feet (the
“Premises Rentable Area”).
	 
	 	 
	Permitted Use:

	 	General office uses, research and development
uses, laboratory uses, light manufacturing uses,
and uses accessory or ancillary thereto, all to
the extent permitted by applicable zoning laws,
and for no other purpose whatsoever.
	 
	 	 
	Building:

	 	The building located at 100 Crosby Drive,
Bedford, Massachusetts, containing approximately
261,961 rentable square feet of floor area (the
“Building Rentable Area”) located on the Land and
all other improvements now or hereafter located
on the Land.
	 
	 	 
	Land:

	 	The parcel of land known and numbered 100 Crosby
Drive, Bedford, MA, which is legally described on
Appendix 1.1B (Legal Description).
	 
	 	 
	Property:

	 	Collectively, the Land and the Building. The
Property is generally shown on the Site Plan
attached hereto as Appendix 1.1C.
	 
	 	 
	Term:

	 	Six (6) years and six (6) months, beginning on
the Lease Commencement Date and ending on the
Expiration Date, as more fully set forth in
Article 1 of this Lease (the “Initial Term”; the
Initial Term, as it may be extended by the five
(5) year Extension Term (as defined in Section
1.4.1.1 hereof), is referred to as the “Term”).
	 
	 	 
	Lease Commencement Date:

	 	 June 1, 2010, subject to Section 1.4.3.






2









 






	 	 	 
	Rent Commencement Date:

	 	December 1, 2010, subject to Section 1.4.3.
	 
	 	 
	Expiration Date:

	 	November 30, 2016.
	 
	 	 
	 

	 	FINANCIAL TERMS






Monthly Base Rent:




	 	 	 	 	 	 	 	 	 
	 	 	Monthly	 	Annual
	Months	 	Base Rent	 	Rate p/rsf
	Commencing on the Rent
Commencement Date through and
including the Expiration Date

	 	$	201,155.50	 	 	$	19.50	 






	 	 	 
	 

	 	Monthly Base Rent is payable, in advance, on the first day of each
calendar month.
	 
	 	 
	Additional Rent:

	 	Tenant’s Proportionate Share of increases in Operating Expenses and Taxes, and, if applicable, the
Electric Charge, all as defined and provided in Article 2.
	 
	 	 
	Base Tax Year:

	 	Fiscal year 2011 (i.e., July 1, 2010 through June 30, 2011).
	 
	 	 
	Base Expense Year:

	 	Calendar year 2011 (i.e., January 1, 2011 through December 31, 2011).
	 
	 	 
	Tenant’s
Proportionate Share:
	 	 
	

	 	The percentage obtained by dividing the Premises Rentable Area by the Building Rentable Area, as the
same may be adjusted from time to time based on changes to the Premises Rentable Area, the Building
Rentable Area, or both. As of the date of this Lease, the Building Rentable Area is approximately
261,961 rentable square feet, and the Tenant’s Proportionate Share of increases in Taxes and Tenant’s
Proportionate Share of increases in Operating Expenses is 47.25%.
	 
	 	 
	Letter of Credit:

	 	An unconditional, irrevocable
letter of credit in the amount of $603,466.50 in the form of
Appendix 2.6 attached hereto and made a part hereof, subject to reduction as set forth in Section 2.6 hereof.






ARTICLE 1. PREMISES AND TERM




     1.1. Premises. Landlord hereby leases the Premises to Tenant, and Tenant hereby leases the Premises from Landlord,
subject to the covenants and conditions set forth in this Lease, for the Term, commencing on the
Lease Commencement Date and expiring on the Expiration Date, unless earlier terminated as provided
in this Lease.



          1.1.1. Tenant’s Right to Use, in Common with Others, the Common Areas; Rights Reserved to
Landlord. During the Term, Tenant shall have the right to use in common with others entitled
thereto all areas and facilities outside the Premises and within the exterior boundary line of the
land upon which Building is located that are designated by Landlord from time to time for the
general non-exclusive use of Landlord, Tenant, and the other tenants of the Property and their
respective
employees, suppliers, customers and invitees, including, but not limited to common entrances,
lobbies, corridors, stairwells, public restrooms, elevators, parking areas, roadways, grounds,
landscaped areas, and




3









 




sidewalks, and also including to the extent made available by Landlord to all
tenants of the Property from time to time, recreation areas and other general amenities, areas or
facilities including without limitation, a cafeteria and a fitness center (the “Common
Areas”), subject to the Rules and Regulations attached hereto as Appendix 1.1.1,
established by Landlord, and as reasonably amended or restated by Landlord from time to time, and
to the right of Landlord to designate or change from time to time such areas and facilities or to
cease operation of such amenities. During the Term Landlord shall use commercially reasonable
efforts to operate, or cause an operator to operate, a fitness center and a cafeteria at the
Property. In the event that the Landlord ceases to operate the cafeteria (other than with respect
to a temporary closure, including, but not limited to, in connection with the repair, renovation,
or alteration of the cafeteria, or a change in operator), Tenant, at Tenant’s sole cost and
expense, may operate the cafeteria in the Building, provided that Tenant executes a license
agreement in connection therewith in form reasonably satisfactory to Landlord, and provided further
that if the cafeteria is made available to all tenants of the Building no additional rent shall be
due to Landlord therefor, however, if the cafeteria is only available for Tenant’s use, the
cafeteria shall be added to the Premises, and Tenant shall pay rent thereon at the same rate as
with respect to the Premises and Tenant’s Proportionate Share shall be increased to account for the
square footage of the cafeteria.




          1.1.2. Expansion Option. Provided that as of the date Tenant exercises its rights
hereunder, (i) Tenant actually occupies at least fifty percent (50%) of the Premises originally
demised under this Lease, (ii) Tenant is not in Default, and (iii) the Option Space (defined below)
has not been leased to Tenant or to a third party pursuant to Section 1.1.3 below, Tenant will have
the option, commencing on the date that Landlord delivers the Option Space to Tenant in the
condition required by this Section 1.1.2, but, at Tenant’s election, in no event earlier than June
1, 2011 (the “Option Space Commencement Date”), to include a total of approximately 22,337
square feet of space on the second and fourth floors of the east tower of the Building as shown on
Appendix 1.1.2 hereto, as part of the Premises (the “Option Space”). If Tenant
exercises its right to include the Option Space as part of the Premises, Tenant will lease the
Option Space upon all the terms and conditions of this Lease (i.e., the term for Tenant’s leasing
of the Option Space shall expire on the Expiration Date, the Base Years set forth in the Schedule
of Incorporated Terms hereof shall be applicable to Tenant’s payment of Additional Rent on account
of the Option Space, the Base Rent for the Option Space will be at the annual rate of $19.50 per
square foot of rentable space commencing no earlier than the Rent Commencement Date set forth
herein, and the Option Space shall be delivered to Tenant with the completion by Landlord of
certain improvements thereto (as further described below), provided, however the cost to Landlord
of such Tenant Improvements shall not exceed $20 per rentable square foot of the Option Space).



Tenant’s payment to Landlord of Rent for the Option Space shall commence on the Option Space
Commencement Date, but in no event earlier than the Rent Commencement Date set forth herein. In
addition to its obligation to pay Base Rent, commencing on the Option Space Commencement Date,
Tenant will reimburse and pay Landlord with respect to the Option Space, in the same manner as set
forth in the Lease, with respect to Operating Expenses, Taxes and other items reimbursable by
Tenant, and, commencing on the Option Space Commencement Date, Tenant shall pay the Electric
Charges with respect to the Option Space. Effective as of the Option Space Commencement Date,
Tenant’s Proportionate Share will be re-determined by Landlord based upon the total floor area of
the Premises including the Option Space.



If Tenant desires to exercise its option to lease the Option Space, Tenant must deliver written
notice of such exercise to Landlord no later than March 1, 2011 (the “Option Space
Notice”), such Option Space Notice to include a preliminary space plan of the Option Space
showing the requested improvements to the Option Space (provided, however, as set forth above, the
cost to Landlord of such improvements shall
not exceed $20 per rentable square foot of the Premises). Time is of the essence with respect to
the giving of the Option Space Notice. If Tenant does not exercise its Option by such date,
Tenant’s rights


4









 






under this Section 1.1.2 will be null and void. Within thirty (30) days of
Tenant’s exercise of the within option, Landlord and Tenant shall enter into an amendment to Lease
which adds the Option Space to the Premises and includes all the terms and provisions, set forth
herein, with respect to Tenant’s leasing of the Option Space (provided, however, any failure to
execute and deliver such Amendment shall not affect the rights or obligations of the parties with
respect to the Option Space), and in addition, within eight (8) days of receipt thereof Landlord
shall reasonably approve or disapprove Tenant’s preliminary space plan. If Landlord disapproves
the preliminary space plan, such disapproval shall be in writing and shall provide a reasonably
detailed explanation of the reasons for such disapproval, and to the extent possible, suggestions
for alternatives that would be acceptable to Landlord. Landlord and Tenant shall thereafter
cooperate to complete such preliminary space plan; provided, however, the failure (despite
Landlord’s compliance with the terms of this paragraph) to finalize the preliminary space plan by
the date that is thirty (30) days following the date of Landlord’s receipt of the Option Space
Notice shall be a Tenant Delay. All revisions and/or review of plans shall be completed within
eight (8) days of receipt of comments in connection therewith and copies thereof, respectively.
After final approval of the preliminary space plan (the “Final Space Plan”), Landlord
shall, based on the Final Space Plan, prepare Construction Plans for the improvements to the Option
Space in accordance with Section 2.1 of Appendix 1.3.4 (provided that the term “Space
Plans” as used therein shall refer to the Final Plans as defined in this Section 1.1.2).



Landlord shall use reasonable efforts to substantially complete the improvements to the Option
Space on June 1, 2011; provided, however, if the Option Space Notice is given before March 1, 2011,
upon Tenant’s request, Landlord shall use reasonable efforts to substantially complete the
improvements to the Option Space on the date that is one hundred twenty (120) days after the date
of Landlord’s approval of the Final Space Plan (such applicable substantial completion date is
hereinafter referred to as the “Option Space Delivery Date”). If Landlord is not able to
deliver possession of the Option Space to Tenant by the Option Space Delivery Date, Landlord shall
not be subject to any liability therefor, nor shall such failure affect the validity of this Lease,
or the obligations of Tenant hereunder, or extend the Term hereof, but in such case, Tenant shall
not be obligated to pay rent with respect to the Option Space until the date that Landlord delivers
possession of the Option Space to Tenant. Notwithstanding the foregoing, if the delay in the
Option Space Delivery Date resulted from a Tenant Delay, the Option Space shall be deemed to have
been delivered on the date that the improvements to the Option Space would have been substantially
complete in the absence of such Tenant Delay.




          1.1.3. Right of First Refusal. Provided that as of the date of the giving of the ROFR
Notice (as defined below), (i) Tenant actually occupies at least fifty percent (50%) of the
Premises originally demised under this Lease, (ii) Tenant is not in Default, and (iii) Tenant has
not exercised its rights under Section 1.1.2 hereof, if at any time during the Term any lease for
the Option Space expires (or if the Option Space is otherwise vacant), if Landlord in good faith
intends to enter into a lease (the “Proposed Lease”) for such Option Space with anyone (a
“Proposed Tenant”) other than the tenant or subtenant then occupying such space, Landlord
will first offer to Tenant the right to lease the Option Space upon all the terms and conditions of
the Proposed Lease; provided, however, if the ROFR Notice (as hereinafter defined) is given on or
prior to March 1, 2011, Tenant shall be given the option to lease the Option Space on the terms and
conditions set forth in Section 1.1.2 above (rather than upon the terms and conditions of the
Proposed Lease).



Such offer will be made by Landlord to Tenant in a written notice (the “ROFR Notice”) which
offer will designate the space being offered and specify the terms for such Option Space, which
will be the same as those set forth in the Proposed Lease, or, if such ROFR Notice is given on or
before March 1, 2011, as set forth in the prior paragraph. Tenant may accept the offer set forth
in the ROFR Notice by delivering to
Landlord an unconditional acceptance (“Tenant’s Notice”) of such offer within ten (10)
business days after delivery by Landlord of the ROFR Notice to Tenant (the “Response
Date”), and if such Response


5









 






 Notice is given with respect to a ROFR Notice given on or before
March 1, 2011, shall specify whether Tenant elects to lease such Option Space upon the terms and
conditions of the Proposed Lease or upon the terms and conditions described in Section 1.1.2
hereof. Time is of the essence with respect to the giving of Tenant’s Notice. Except as otherwise
set forth below, if Tenant does not accept (or fails to timely accept) an offer made by Landlord
designated in the ROFR Notice, Landlord will be under no further obligation with respect to the
Option Space or the Offered Space (as defined in Section 1.1.4 below), and Tenant shall not have
any option or right to lease the Option Space under Section 1.1.2 or Section 1.1.3 of this Lease or
the Offered Space under Section 1.1.4 of this Lease, and all of said Sections 1.1.2, 1.1.3, and
1.1.4 shall be of no further force or effect. In order to send the ROFR Notice, Landlord does not
need to have negotiated a complete lease with the Proposed Tenant but may merely have a non-binding
term sheet or letter of intent for the Proposed Lease, and Tenant must make its decision with
respect to the Option Space as long as it has received Landlord’s good faith description of such
material economic terms. Within thirty (30) days of delivery of Tenant’s Notice, Landlord and
Tenant shall enter into an amendment to Lease which adds the Option Space to the Premises and
includes all the applicable terms and provisions in connection therewith; provided, however, any
failure to execute and deliver such Amendment shall not affect the rights or obligations of the
parties with respect to the Option Space.



Tenant must accept all Option Space offered by Landlord at any one time if it desires to accept any
of such Option Space and may not exercise its right with respect to only part of such space. In
addition, if Landlord desires to lease more than just the Option Space to one tenant, Landlord may
offer to Tenant, pursuant to the terms hereof, all such space which Landlord desires to lease, and
Tenant must exercise its rights hereunder with respect to all such space and may not insist on
receiving an offer for just the Option Space (unless Tenant’s leasing of such Option Space is
pursuant to a ROFR Notice given on or prior to March 1, 2011, and Tenant opts to lease such space
on the terms set forth in Section 1.1.2 hereof). The term for Tenant’s leasing of the Option Space
shall be for the time period set forth in the ROFR Notice (or as otherwise set forth in this
Section 1.1.3), which may not be coterminous with the Term of the Lease for the original Premises.



If Tenant at any time declines any Option Space offered by Landlord under this Section 1.1.3,
Tenant will be deemed to have irrevocably waived all further rights with respect to the Option
Space (both under this Section 1.1.3 and under Section 1.1.2 hereof) as well as all rights with
respect to the Offered Space under Section 1.1.4 hereof, and Landlord will be free to lease the
Option Space to the Proposed Tenant or any subsequent tenant including on terms which may be more
or less favorable to Landlord than those set forth in the Proposed Lease and to lease the Option
Space to any third party without first offering such space to Tenant pursuant to Section 1.1.4
hereof. Notwithstanding the foregoing, if Landlord intends to lease the Option Space to a Proposed
Tenant for a more favorable, by five percent (5%) or more, total rent paid over the term of the
proposed lease or tenant improvement allowance, if any, than the rental rate and/or the tenant
improvement allowance set forth in the ROFR Notice, and/or if the size or configuration of the
Option Space offered by Landlord has been altered by more than five percent (5%), and/or if a lease
for such Option Space has not been executed within one hundred eighty (180) days of the Response
Date, Landlord shall re-offer the Option Space to Tenant, pursuant to the terms of this Section
1.1.3, prior to leasing the Option Space to any third party (other than the current tenant or
subtenant thereof, if any).




          1.1.4. Right of First Offer. Tenant shall have the right during the initial Term of
the Lease to lease any unoccupied space in the west tower of the Building (the “Offered
Space”) in accordance with the terms of this Section 1.1.4, provided that as of the date of the
giving of Tenant’s Expansion Request (as hereafter defined), (a) Tenant actually occupies at least
fifty percent (50%) of the Premises originally demised under this Lease, and (b) Tenant is not in
Default. If Tenant wishes to lease additional space in the Building, Tenant shall provide written
notice to Landlord of Tenant’s desire to
lease all or any portion of the Offered Space (“Tenant’s Expansion Request”).
However, such expansion right shall not be applicable to (i) a renewal, expansion, assignment or
sublease of any lease or any new




6









 




lease with any existing tenant or any affiliate of any existing
tenant for space in any portion of the Offered Space (and Landlord shall be free, at any time, to
lease all or any portion of the Offered Space to any such party without first offering such space
to Tenant), (ii) any expansion options or similar rights granted, at any time, to any other tenant
in the Building pursuant to its lease, or (iii) the inclusion of any other space in Tenant’s
Expansion Request in addition to the Offered Space.



If Tenant does not provide Tenant’s Expansion Request during the Initial Term of the Lease, then
Tenant’s right to expand under this Section 1.1.4 automatically will terminate and be of no further
force or effect. If Landlord determines in its sole and absolute discretion that such Offered
Space is available for lease or will be available for lease within the six months following
Landlord’s receipt of Tenant’s Expansion Request Landlord will propose to lease such space to
Tenant at a rental rate and upon other terms and conditions acceptable to Landlord in its sole and
absolute discretion (“Landlord’s Expansion Proposal”). No court, arbitrator, mediator,
appraiser or other third party shall have the right to determine the terms and conditions for any
lease terms in Landlord’s Expansion Proposal. Tenant shall have ten (10) business days within
which to agree to lease such Expansion Space on the terms set forth in Landlord’s Expansion
Proposal or to reject such proposal. Time is of the essence with respect to the giving of Tenant’s
notice of acceptance of Landlord’s Expansion Proposal. The failure of Tenant to provide written
notice of acceptance shall be deemed a rejection. If Tenant provides written notice of acceptance
of Landlord’s Expansion Proposal, but makes any changes in the terms for the lease of the Expansion
Space contained in the Landlord’s Expansion Proposal, then it shall be deemed a rejection of
Landlord’s Expansion Proposal.



Tenant must accept all Offered Space offered by Landlord in Landlord’s Expansion Proposal at any
one time if it desires to accept any of such Offered Space, and may not exercise its right with
respect to only part of such space. In addition, if Landlord desires to lease more than just the
Offered Space to one tenant, Landlord may offer to Tenant, pursuant to the terms hereof, all such
space which Landlord desires to lease, and Tenant must exercise its rights hereunder with respect
to all such space and may not insist on receiving an offer for just the Offered Space.



If Tenant does not accept the offer to lease the Offered Space (or any portion thereof) contained
in the Landlord’s Expansion Proposal, Landlord shall be free to lease all or any portion of the
Offered Space (including, without limitation, any space that is part of the Offered Space but was
not included in Landlord’s Expansion Proposal) to any other party on such terms proposed in
Landlord’s Expansion Proposal, or on any other terms which may be different than the terms in
Landlord’s Expansion Proposal, in which case Tenant’s right to lease all or any portion of the
Offered Space shall automatically terminate and be of no further force and effect, notwithstanding
that Landlord may or may not actually lease all or any portion of the Offered Space to any other
party(ies). Tenant acknowledges that Landlord shall have the right to lease portions of the
Offered Space to different parties, but that Tenant’s expansion right under this Section 1.1.4 only
pertains to the Offered Space contained in Landlord’s Expansion Proposal.



Within thirty (30) days of delivery of Tenant’s acceptance of Landlord’s Expansion Proposal,
Landlord and Tenant shall enter into an amendment to Lease which adds the Offered Space to the
Premises and includes all the applicable terms and provisions in connection therewith; provided,
however, any failure to execute and deliver such Amendment shall not affect the rights or
obligations of the parties with respect to the Offered Space.




     1.2. Licenses and Other Rights.



          1.2.1. Parking Rights. During the Term, Tenant shall have the right, with respect to
the Premises and the Option Space, to use in common with other tenants of Landlord, at no cost to
Tenant, four (4) parking spaces per 1,000 square feet of Premises Rentable Area (i.e., 495 total
spaces as of the




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date of this Lease) as the same may exist from time to time, in the parking areas
designated by Landlord for use by Building tenants (the “Parking Lot”). Landlord may
establish reasonable, non-discriminatory rules and regulations regarding the use of the Parking
Lot. Without limiting the foregoing, at all times during the Term, Landlord shall, at Landlord’s
sole cost and expense, ensure that the Parking Lot contains sufficient parking spaces to satisfy
the parking rights Landlord has granted to Tenant and all other tenants so that the number of
parking spaces allocated to Tenant are available for Tenant’s use.



Tenant agrees not to overburden the parking facilities and agrees to cooperate with Landlord and
other tenants in the use of parking facilities. Said parking spaces shall be used for parking by
vehicles no larger than full-size passenger automobiles, sport-utility vehicles and pick-up trucks,
herein called “Permitted Size Vehicles.” Vehicles other than Permitted Size Vehicles shall
be parked and loaded or unloaded as directed by Landlord. Landlord reserves the right, in its
reasonable discretion, to determine whether parking facilities are becoming overcrowded, and in
such event, to allocate parking spaces among tenants or to designate areas within which Tenant must
park; provided that, at all times, Tenant shall have the right to the number of spaces described
above. Landlord may, in its reasonable discretion, assign tandem parking spaces to Tenant and/or
grant designated, reserved parking stalls to other tenants in the Building. For purposes of this
Lease, a “parking space” refers to the space in which one (1) motor vehicle is intended to park
(e.g., a tandem parking stall includes two tandem parking spaces). Further, Landlord may, in its
sole discretion, elect to use a valet service (of Landlord’s choice, so long as first class valet
service is provided) to park cars in the parking area serving the Property. Tenant shall, at all
times, cooperate with Landlord in connection with the operation of such valet service. Tenant and
Tenant’s employees, visitors and customers assume all responsibility for damage and theft to
vehicles, except for that caused by any valet service. Landlord shall have no obligation
whatsoever to monitor or police the use of the parking or other Common Areas except to the extent
necessary to ensure the number of parking spaces granted to Tenant are available for Tenant’s use.
If Tenant commits, permits or allows any of the prohibited activities described in this Lease or
the rules and regulations then in effect, then Landlord shall have the right, without notice, in
addition to such other rights and remedies that it may have to remove or tow away the vehicle
involved and charge the cost to Tenant, which cost shall be payable upon invoice by Landlord.




          1.2.2. Generator. Landlord grants to Tenant an exclusive license to use throughout
the Term the existing 300 kw generator that services the computer lab on the fourth floor portion
of the Premises and the UPS systems (a 40 kva unit and a 50 kva unit) that service the computer lab
and professional services lab on the fourth floor portion of the Premises (the “Backup Power
System”). In addition, Tenant may install, at Tenant’s sole cost and expense and in compliance
with the terms and conditions of this Lease, conduits and other equipment connecting the Premises
to the Backup Power System (collectively, “Tenant’s Equipment”). At all times during the
Term hereof, Tenant shall maintain, at Tenant’s sole cost and expense, Tenant’s Equipment in good,
operational working order and condition (copies of such maintenance records to be provided to
Landlord within five (5) days of Landlord’s request therefor) and in compliance with all applicable
laws, codes, ordinances, orders, directives, rules and regulations, all insurance requirements, and
all reasonable rules and regulations which may be promulgated by Landlord from time to time. At
Landlord’s request, Tenant shall test Tenant’s Equipment at least once per year, and provide the
results of such testing to Landlord within five (5) days of the date of Tenant’s receipt of such
results. Although Tenant is not required to pay to Landlord a fee for the usage of the Backup
Power System, Tenant shall pay to Landlord all actual utility and fuel costs, determined by
Landlord in its reasonable discretion, associated with Tenant’s use of the Backup Power System.
Tenant shall maintain the Backup Power System in accordance with commercially reasonable standards;
provided, however Landlord shall replace the Backup Power System if such system requires
replacement
during the Term, and Tenant shall reimburse Landlord as additional rent on a monthly basis
during the Term for the annual amortization of the cost of such replacement, amortized over the
remainder of the Term. The Backup Power System shall be returned to Landlord in good working
order, reasonable wear




8









 




and tear excepted. Tenant acknowledges that Landlord makes no warranty or
representation with respect to the Backup Power System or its suitability for Tenant’s use, and
Landlord shall have no responsibility or liability to Tenant in connection with any failures of
such Backup Power System; provided, however, Landlord hereby provides Tenant with a one-year
warranty on the Backup Power System, such that Landlord shall be responsible, at its sole cost and
expense, for any necessary replacement thereof for a period of one year following the Lease
Commencement Date. Tenant hereby releases Landlord and its property manager and their respective
agents and employees, and waives any and all claims for damage or injury to person or property or
loss of business sustained by Tenant, in connection with or resulting from the Backup Power System
becoming in disrepair, malfunctioning, or failing, all as further set forth herein, except in each
case, to the extent a court of competent jurisdiction determines that such damage or injury
resulted from a breach of Landlord’s duty hereunder.



Tenant’s right to use the Backup Power System is granted solely to service the Premises, and Tenant
shall not permit the use of the Backup Power System by any party not occupying the Premises.
Landlord shall have the right to inspect the Backup Power System, upon twenty-four (24) hours prior
notice to Tenant, to ensure compliance with the terms of this Lease. Upon expiration or
termination of this Lease, unless otherwise specified by Landlord, Tenant shall return the Backup
Power System and associated conduits to Landlord in the condition existing on the Lease
Commencement Date, reasonable wear and tear excepted. Tenant shall have the right to install
additional conduits and other equipment supporting the Backup Power System, and to upgrade the
Backup Power System, with Landlord’s prior written consent, which consent shall not be unreasonably
withheld, and then in compliance with all the terms and conditions of the Lease.




          1.2.3. Rooftop Equipments. Effective as of the Lease Commencement Date, Landlord
hereby grants to Tenant a license to use an approximately two thousand (2,000) square foot portion
of the roof (the “Rooftop Installation Area”) of the Building and enjoy 24-hour access
thereto (the “Rooftop License”) at a technologically sufficient location to be proposed by
Tenant and reasonably approved by Landlord, with any guide wires to be located therein or within
the immediate vicinity. The Rooftop Installation Area is to be used by Tenant solely for the
installation, operation, maintenance, repair and replacement during the Term of this Lease of
Tenant’s communications equipment (collectively, the “Communications Equipment”). Prior to
installation of any Communications Equipment, Tenant shall submit to Landlord the applicable
specifications for such Communications Equipment. Tenant’s installation and operation of the
Communications Equipment and its obligations with respect thereto shall be all in accordance with
the terms, provisions, conditions and agreements contained in this Lease, including, but not
limited to Appendix 1.3.3. Once the Rooftop Installation Area has reached its full
capacity, except for replacement of the Communications Equipment, Tenant shall have no right to
install any additional equipment on the rooftop of the Building without Landlord’s prior written
consent which may be withheld in Landlord’s sole and unrestrained discretion. Further, Tenant
covenants that such Communications Equipment shall (i) not adversely affect the roof or the
structural elements of the Building, (ii) not void any applicable roof warranty, (iii) comply with
all governmental regulations and requirements, (iv) be installed at Tenant’s sole cost and expense,
(v) be screened from view in a reasonable manner, and (vi) not unreasonably interfere with other
systems already in place on the Building, if any. Tenant shall be responsible for the maintenance
and repair of the Communications Equipment, at Tenant’s sole cost and expense, and Tenant agrees
that the installation, operation and removal of the Communications Equipment will be at its sole
risk. Landlord assumes no responsibility for interference with the operation of the Antenna caused
by other tenants’ or licensees’ telecommunications equipment, or for interference with the
operation of other tenants’ and licensees’ telecommunications equipment caused by the
Communications Equipment. At the expiration or earlier
termination of the Lease, the Communications Equipment shall remain the property of Tenant,
and shall be removed by Tenant in accordance with the terms hereof. Upon the removal by Tenant of
any Communications Equipment, Tenant shall repair any damage done in connection with such removal.




9









 





          1.2.4. Right to Install Security Cameras in Parking Areas. At Tenant’s option, Tenant
may install a security camera system (the “Security Camera”) in the Parking Lot for the
purpose of monitoring the safety of Tenant’s employees and invitees. Prior to installation of the
Camera System, Tenant shall provide Landlord with notice of Tenant’s intent to install such system,
which notice shall include a description of the Camera System to be installed, as well as the
means, methods, and location of installation, all of which shall be subject to Landlord’s approval,
not to be unreasonably withheld. Tenant’s installation and operation of the Camera System and its
obligations with respect thereto shall be at Tenant’s sole cost and expense and otherwise in
accordance with the terms, provisions, conditions and agreements contained in this Lease,
including, but not limited to Appendix 1.3.3. Tenant shall be responsible for the
maintenance and repair of the Camera System, at Tenant’s sole cost and expense, and Tenant agrees
that the installation, operation and removal of the Camera System will be at its sole risk. At the
expiration or earlier termination of the Lease, the Camera System shall remain the property of
Tenant, and shall be removed by Tenant in accordance with the terms hereof. Upon the removal by
Tenant of the Camera System, Tenant shall repair any damage done in connection with such removal.
As set forth in this Lease, Tenant is responsible for the security of its employees, contractors,
representatives, and invitees, and the terms of this Section 1.2.4 shall not in any way derogate
from such responsibility, nor shall it impose any responsibility for security on Landlord.
Further, Tenant waives any and all claims against Landlord, its agents, advisors, employees,
members, officers, directors, partners, trustees, beneficiaries and shareholders (each, a
“Landlord Party”) and the agents, advisors, employees, members, officers, directors,
partners, trustees, beneficiaries and shareholders of each Landlord Party (collectively, the
“Landlord Parties”) that may arise in connection with the Camera System or as a result of,
or in connection with, anything recorded by such Camera System (except to the extent any such claim
results from the gross negligence or willful misconduct of Landlord or its employees, agents, or
contractors). Further, Tenant agrees to indemnify and defend Landlord, and all of the Landlord
Parties, against all claims, actions, damages, liabilities and expenses including reasonable
attorney’s fees incurred in connection with the loss of life, personal injury, damage to property
or business or any other loss or injury or as a result of any litigation arising out of the
installation, use, operation, existence, or removal of the Camera System by Tenant, or its
successors and/or assigns (except if such liability is caused by the gross negligence or willful
misconduct of Landlord or its employees, agents, or contractors).




     1.3. Condition of Premises.



          1.3.1. Condition of Premises at Lease Execution. Landlord agrees to deliver the
Premises to Tenant in their present condition, subject to the construction of the Landlord’s Work
by Landlord as provided in Section 1.3.4 hereof and Appendix 1.3.4 attached hereto, and
subject to Landlord’s completion of the work described in Section 1.3.5 below. Tenant acknowledges
that the Premises are being delivered “as is”, that Tenant has performed preliminary investigations
and reviews and has concluded on its own judgment that the Premises are suitable for the purposes
intended, without any representations or warranties of any kind (including, without limitation, any
express or implied warranties of merchantability, fitness or habitability) from Landlord or any
agent of Landlord, except as expressly provided in this Lease.




          1.3.2. Acceptance of Premises. Tenant’s taking possession of the Premises shall be
conclusive evidence that the Premises were in good order and satisfactory condition when Tenant
took possession. Except as expressly provided herein, no agreement of Landlord to alter, remodel,
decorate, clean or improve the Premises or the Property, and no representation regarding the
condition of the
Premises or the Property or the suitability of the Premises for Tenant’s proposed use thereof,
have been made by or on behalf of Landlord or relied upon by Tenant.




          1.3.3. Tenant Work. “Tenant Work” shall mean any and all work (if any),
including, without limitation, demolition, improvements, additions and alterations, in or to the
Premises performed




10









 




by Tenant in connection with Tenant’s initial occupancy of the Premises. All
Tenant Work shall be performed in accordance with the terms and conditions of Appendix
1.3.3 hereto.




          1.3.4. Initial Tenant Improvements — Landlord’s Work. The “Landlord’s Work” shall
mean the initial Tenant Improvements to be constructed by Landlord to the Premises (and as further
defined in Appendix 1.3.4), as well as certain exterior landscaping improvements and
building exterior cleaning to be completed by Landlord (the “Exterior Improvements”, as further
defined in Appendix 1.3.4), all in accordance with Appendix 1.3.4 attached hereto.
Notwithstanding anything to the contrary contained herein, all costs (including both hard and soft
costs of construction) of the Tenant Improvements (including the Tenant Improvements as defined in
Appendix 1.3.4, but excluding the Exterior Improvements, as defined in paragraph 2 and
Schedule 2 of Appendix 1.3.4) in excess of $3,198,768.00 shall be paid by Tenant within ten
(10) days of the date of an invoice from Landlord. Notwithstanding anything to the contrary
contained herein, Landlord shall, within a commercially reasonable period of time, repair and/or
correct any defects in the Tenant Improvements of which Tenant has delivered notice to Landlord
prior to the expiration of the one (1) year period following the date of substantial completion
thereof.




          1.3.5. Base Building Work. Landlord shall cause all structural elements, including
the roof, HVAC, life safety, electrical, plumbing and other building systems to be in good, working
order and repair as the Lease Commencement Date.




          1.3.6. Fourth Floor Stairwell. Currently, the portion of the Option Space located on
the fourth (4th) floor of the east tower of the Building (the “Fourth Floor Option
Space”) requires exiting to a stairwell located within the portion of the Premises located on
the fourth (4th) floor of the east tower of the Building (the “Fourth Floor
Premises”). Concurrently with the construction of the Tenant Improvements (but subject to the
following sentence), Landlord shall install, at Tenant’s sole cost and expense (such costs to be
paid by Tenant to Landlord within fifteen (15) days of the date of Landlord’s invoice therefor),
two alarmed, secured egress doors satisfactory to Tenant, one to be located between the Fourth
Floor Premises and the Fourth Floor Option Space (adjacent to the stairwell referenced above), and
the second to be located between the Fourth Floor Option Space and the adjacent fourth floor space
located in the west tower of the Building. Notwithstanding the foregoing, if the appropriate
Building Department requires the construction of an enclosed hallway and elevator lobby enclosure
within the Fourth Floor Premises (the “Enclosed Hallway/Lobby”), rather than the secured
egress door described above, Landlord, as part of the construction of the Tenant Improvements,
shall so construct the Enclosed Hallway/Lobby, provided that all aspects of Landlord’s construction
thereof shall be subject to Tenant’s approval, which shall not be unreasonably withheld,
conditioned or delayed. Additionally, if a secured egress door is installed in the Fourth Floor
Premises, and subsequently Tenant does not exercise its right to lease the Fourth Floor Option
Space, and Landlord leases all or any portion of the Fourth Floor Option Space to a party unrelated
to Tenant, Landlord, at Landlord’s sole cost and expense (and not includable as an Operating
Expense), shall so construct the Enclosed Hallway/Lobby. Further, Landlord, after the initial
installation thereof, reserves the right to replace, at Landlord’s cost and expense, the secured
egress door located between the Fourth Floor Option Space and the space in the west tower of the
Building with a secured door of a different style. Tenant may use the Building stairwells for
employee access between floors of the Premises, subject to compliance with applicable Legal
Requirements and the provisions of this Lease. Incident to such use, Tenant may from time to time
install, at Tenant’s sole cost and expense, in accordance with the terms and provisions of the
Lease, and provided that such installation does not
cause any non-compliance of the Building with applicable Legal Requirements, security access
equipment for entry/egress from such stairwells into the Premises as well as upgraded security
doors to the Premises (such security access system and related finishes to be reasonably approved
by Landlord in accordance with the terms hereof). Upon the expiration or earlier termination of
the Term, Tenant shall remove such security installations and restore the affected areas
substantially to their prior condition.




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     1.4. Term and Termination Date.



          1.4.1. Term. The Term of this Lease shall be the time period provided in the Schedule
of Incorporated Terms, commencing on the Lease Commencement Date and expiring on the Expiration
Date, unless terminated earlier or extended as provided in this Lease.




               1.4.1.1 Extension Term. Provided Tenant is occupying at least fifty percent (50%) of
the Premises, Tenant in not in Default hereunder, both at the time the option may be exercised, and
on the commencement date of the Extension Term (as hereinafter defined), Landlord grants to Tenant
one (1) option (the “Extension Option”) to extend this Lease with respect to all of the
Premises for an additional period of five (5) years (the “Extension Term”). The Extension
Option may be exercised by Tenant delivering written notice to Landlord at least twelve (12)
months, but not more than fifteen (15) months, prior to the Expiration Date of the Initial Term
(the “Tenant’s Extension Notice”). Time is of the essence in the exercise of the Extension
Option.


The annual Base Rent payable for the Extension Term (the “Extension Rental Rate”) shall be
ninety-five percent (95%) of the market rental rate for comparable space in comparable buildings in
the general vicinity of the Building (with respect to size, age, use, quality, utility and
location) being leased by a new, non-equity tenant, and taking into account the Tenant’s
creditworthiness, the length of the term, the base years, expansion and extension rights (or the
lack thereof), and all allowances and concessions being offered in the marketplace, as well as
transaction costs, such as broker’s commissions (or the lack thereof) (but in no event less than
$19.50 per square foot of Premises Rentable Area), determined as follows:



In the event Tenant timely exercises the Extension Option in accordance herewith, within thirty
(30) days after Landlord receives notice of Tenant’s exercise of such Extension Option, Landlord
shall notify Tenant in writing of Landlord’s good faith determination of the Extension Rental Rate
for the Extension Term (“Landlord’s Extension Term Rental Notice”). Tenant shall have
fifteen (15) days from the date of Landlord’s Extension Term Rental Notice to either accept or
dispute Landlord’s determination of the Extension Rental Rate. In the event that Tenant disputes
Landlord’s determination of the Extension Rental Rate, Tenant shall so notify Landlord and advise
Landlord of Tenant’s determination of the Extension Rental Rate. If Landlord and Tenant cannot
agree upon the Extension Rental Rate within thirty (30) days of the date of Landlord’s Extension
Term Rental Notice (the “Negotiation Period”), Landlord and Tenant shall simultaneously
exchange within the following fifteen (15) days, on a date determined by Landlord, statements
setting forth each such party’s conclusion regarding the Extension Rental Rate (each, a
“Statement of Rental Rate”); provided, however, that if one party has not submitted such
statement within forty-five (45) days after the date of Landlord’s Extension Term Rental Notice,
then the determination set forth in the other party’s statement shall be final and binding upon
both parties. Landlord and Tenant shall then mutually select a real estate professional with at
least ten (10) years’ continuous experience in the business of appraising or marketing multi-tenant
office buildings in the Greater Boston Area (the “Valuation Expert”) to resolve the dispute
as to the Extension Rental Rate. If Landlord and Tenant cannot agree upon the designation of the
Valuation Expert within thirty (30) days of the exchange of the Statements of Rental Rate, either
party may apply to the American Arbitration Association, the Greater Boston Real Estate Board, or
any successor thereto, for the designation of a Valuation Expert. Within ten (10) days of the
selection of the Valuation Expert, Landlord and Tenant shall each submit to the Valuation Expert a
copy of its Statement of Rental Rate, together with any
supporting material. The Valuation Expert shall not perform his own valuation, but rather, shall,
within thirty (30) days after receipt of such submissions, select as the Extension Rental Rate the
submission which the Valuation Expert concludes most closely and accurately reflects the Extension
Rental Rate for the Premises and the rental rate set forth in that submission shall be the
Extension Rental Rate for the Extension Term in question (provided, however, that in no event shall
the Extension Rental Rate ever be less than $19.50 per square foot of Premises Rentable Area). The
Valuation Expert shall give notice of


12









 






 his or her determination to Landlord and Tenant and such
decision shall be final and conclusively binding upon Landlord and Tenant. Each party shall pay
the fees and expenses of any real estate professional such party retains and such party’s counsel,
if any, in connection with any proceeding under this paragraph, and the party whose determination
was determined by the Valuation Expert not to most accurately and closely reflect the Extension
Rental Rate of the Premises shall pay the fees and expenses of the Valuation Expert.



Landlord and Tenant shall execute an amendment to this Lease within thirty (30) days after the
determination of the Extension Rental Rate (in accordance with the procedure set forth above) for
the Extension Term, which amendment shall set forth the Extension Term, the Extension Rental Rate,
and any other terms and conditions for such Extension Term; provided, however, any failure to
execute and deliver such Amendment shall not affect the rights or obligations of the parties with
respect to the Extension Term.



Except as set forth above, the Extension Term shall be subject to all of the terms and conditions
of this Lease; provided, however, that Tenant shall have no further extension rights once it has
exercised the Extension Option.




          1.4.2. Yield Up. Upon the expiration or earlier termination of the Term or Tenant’s
right to possession of the Premises, Tenant shall return the Premises to Landlord broom clean and
in the same order and condition existing on the Lease Commencement Date (and with respect to any
space added to the Premises, the condition of such space on the date of delivery of such space to
Tenant), ordinary wear, only, excepted, subject, however, to the following provisions.
Furthermore, Landlord shall not require Tenant to remove any Alterations (as defined in Section
3.5.1) installed in the Building by Tenant (collectively, “Tenant’s Installations”), unless
such Tenant’s Alterations are special purpose installations such as interior staircases between
floors, safes, high density filing systems, kitchens (not including accessory coffee stations), and
the like, which are not customary in similar buildings, and Landlord specifies the items which are
to be removed during its approval of the plans for such items. Further, Landlord will not specify
removal of cabling, conduits, wiring, supplemental HVAC and the like. If Tenant desires to remove
any such Tenant Installations or other items which Landlord may not require to be removed, Tenant
may only remove such items upon receipt of Landlord’s approval thereof. If Landlord requires
Tenant to remove Tenant’s Installations (or if Tenant has received approval to remove such items),
then such removal shall be done in a good and workmanlike manner; and, upon such removal, Tenant
shall restore the Premises to its condition prior to the installation of such Tenant Installations
(including, without limitation, repairing any damage caused by the removal of Tenant’s
Installations). Prior to the expiration or earlier termination of the Term or Tenant’s right to
possession of the Premises, Tenant shall also remove its furniture, equipment, trade fixtures and
other items of personal property from the Premises. If Tenant does not remove such items prior to
the expiration or earlier termination of the Term or Tenant’s right to possession of the Premises,
Tenant shall be conclusively presumed to have conveyed the same to Landlord free and clear of any
and all liens and security interests without further payment or credit by Landlord to Tenant; or at
Landlord’s sole option such items shall be deemed abandoned, in which event Landlord may cause such
items to be removed and disposed of at Tenant’s expense, without notice to Tenant and without
obligation to compensate Tenant, and Landlord shall, prior to returning the Security Deposit to
Tenant pursuant to Section 2.6 hereof, deduct the cost of
such removal and disposal from the Security Deposit, with any costs thereof in excess of the
Security Deposit to be paid by Tenant to Landlord upon demand.




          1.4.3. Delay in Possession. If for any reason Landlord cannot deliver possession of
the Premises to Tenant by the Lease Commencement Date, except as hereinafter provided, Landlord
shall not be subject to any liability therefor, nor shall such failure affect the validity of this
Lease, or the obligations of Tenant hereunder, or extend the Term hereof, but in such case, Tenant
shall not, except as




13









 




otherwise provided herein, be obligated to pay rent under the terms of this
Lease until the date that is six (6) months following the date that Landlord delivers possession of
the Premises to Tenant. In addition, (a) Tenant shall be entitled to an additional abatement of
rent equal to one day’s rent for each day after June 1, 2010 that Landlord fails to deliver the
Premises in the required condition, (b) two days’ rent for each day after September 1, 2010 that
Landlord fails to deliver the Premises in the required condition, and (c) three days’ rent for each
day after December 31, 2010 that Landlord fails to deliver the Premises in the required condition,
all to be applied against rent first becoming due hereunder. Notwithstanding the foregoing, if the
delay in the Lease Commencement Date resulted from a Tenant Delay, the Premises shall be deemed to
have been delivered on the later of (a) the Lease Commencement Date as set forth in Section 1.1
hereof, or (b) the date that the Landlord’s Work would have been substantially complete in the
absence of such Tenant Delay (and the Rent Commencement Date shall be six (6) months thereafter),
and the dates set forth above shall be extended by one day for each day of Tenant Delay. In
addition to the above, if the Lease Commencement Date has not occurred by December 31, 2010,
Tenant, at Tenant’s option, exercised by written notice to Landlord given no later than January 10,
2011, may elect to complete Landlord’s Work on its own (with the remaining costs therefor to be
reimbursed to Tenant by Landlord within thirty (30) days of receipt by Landlord of an invoice from
Tenant for such costs, accompanied by customary documentation supporting the charges for completion
of such work, which documentation is of a scope and detail sufficient to satisfy a commercial
construction lender operating in the market area in which the Building is located and which shall
include copies of paid invoices from Tenant’s contractor, paid invoices for materials, equipment,
moving and/or installation charges, and lien waivers). If such option is chosen, Landlord shall
reasonably cooperate with Tenant to accommodate Tenant’s contractor, and as otherwise reasonably
necessary for Tenant to complete the Landlord Work. If Landlord fails to reimburse Tenant for such
costs within such thirty-day period, Tenant shall have the right to offset unreimbursed costs
against Monthly Base Rent first becoming due hereunder; provided, however, Tenant shall not be
entitled to offset more than 20% of any particular installment of Monthly Base Rent. Landlord
shall (i) notify Tenant promptly after obtaining knowledge of any fact, event, condition or
circumstance which could delay Landlord’s delivery of the Premises in the required condition, and
(ii) promptly upon Tenant’s request from time to time, provide Tenant with progress reports
regarding Landlord’s expected timing of completion of Landlord’s Work.



Except for the remedies specifically set forth in this Section 1.4.3, which are Tenant’s sole
remedies for the failure of the Lease Commencement Date to occur by the dates specified herein,
Landlord shall not be subject to any liability therefor, nor shall such failure affect the validity
of this Lease, or the obligations of Tenant hereunder, and Tenant waives any right to rescind this
Lease or, except as otherwise set forth herein, to recover from Landlord any damages, direct or
indirect, which may result from the failure of Landlord to timely deliver the Premises.




     1.5. Landlord’s Additional Reserved Rights. Landlord may exercise the rights set
forth in this Section 1.5 without notice and without liability to Tenant and the exercise of such
rights shall not constitute or be deemed to constitute an eviction or disturbance of Tenant’s use
or possession of the Premises and shall not give rise to any claim for set-off, diminution or
abatement of rent, damages or any other claim whatsoever, provided, however, Landlord shall use
commercially reasonable efforts to provide Tenant with reasonable prior notice of the exercise of
such rights, and Landlord’s exercise of its rights under this Section 1.5 shall not, other than to
a de minimus extent, reduce the square footage of the
Premises or materially and adversely impair, disturb, or interfere with, Tenant’s use of the
Premises for the Permitted Use, or the operation of its business therein, or Tenant’s parking or
other appurtenant rights. Notwithstanding anything in this Lease to the contrary, all the
perimeter walls of the Premises except the interior surfaces thereof, any space in or adjacent to
the Premises used for shafts, stacks, ducts, pipes, conduits, wires and appurtenant fixtures, fan
rooms, electrical lines, panels or other equipment used to transmit or store electricity, water
lines, storm and sanitary sewer lines, all other utility lines, installations and meters,
janitorial or other service areas, and all other Building facilities to which Tenant has not been



14









 







granted rights hereunder (the “Reserved Areas and Facilities”), and the use thereof, are
expressly excluded from the Premises and reserved to Landlord. In addition, subject to the
foregoing, Landlord excepts and reserves the right from time to time: (a) to install, use,
maintain, repair, replace and relocate within the Premises and other parts of the Building, or
either, any Reserved Areas and Facilities; and (b) to make alterations to the Building and to alter
or relocate any entranceways, Common Areas or other Reserved Areas and Facilities (including,
without limitation, all access driveways, walkways and parking areas, if any) serving the Premises.
Subject to the foregoing, Landlord further reserves the right, at any time, to lease, license, or
otherwise permit the use by any party of such Reserved Areas and Facilities.


Landlord reserves the following additional rights so long as, in each case, Landlord’s exercise of
such rights does not, other than to a de minimus extent, reduce the square footage of the Premises
or materially and adversely impair, disturb, or interfere with, Tenant’s use of the Premises or the
operation of its business therein, or Tenant’s parking or other appurtenant rights, and in the case
of any work which is not required as a result of an emergency situation, Landlord shall (i) give
Tenant not less than ten (10) business days’ prior written notice, and (ii) to the extent
commercially reasonable, perform such work which is required to be performed in the Building after
regular business hours: (a) to change the name of the Building; (b) to install, affix and maintain
any and all signs on the exterior of the Building (but subject to Tenant’s rights under Section
3.15 hereof and otherwise in compliance with all applicable laws, codes, rules and regulations);
(c) to make repairs, decorations, alterations improvements, replacements, or modifications, whether
structural or otherwise, in and about the Building, and for any of the purposes identified in this
Section 1.5, to enter upon the Premises, temporarily close doors, corridors and other areas in the
Building and interrupt or temporarily suspend services or use of Common Areas in case of emergency,
or necessary repair or alterations; (d) to retain at all times, and to use in appropriate
instances, keys to all doors within and into the Premises; (e) to grant to any person or to reserve
unto itself the exclusive right to conduct any business in compliance with laws or render any
service in the Building; (f) to show or inspect the Premises at reasonable times upon reasonable
prior written notice to Tenant; provided that Landlord shall not show the Premises to prospective
tenants of the Building without Tenant’s prior written consent except in the last twelve (12)
months of the Term; (g) to temporarily close any Common Areas to perform such acts as, in
Landlord’s reasonable judgment are necessary or desirable to maintain or improve the Property; (h)
to install, use and maintain in and through the Premises, pipes, conduits, wires and ducts serving
the Building, provided that such installation, use and maintenance does not unreasonably interfere
with Tenant’s use of the Premises; (i) to subdivide or resubdivide the Property; (j) to take any
other action which Landlord deems reasonable in connection with the operation, maintenance or
preservation of the Building; and (k) to take such other action which in Landlord’s judgment is
necessary to comply with the provisions of any Mortgage (as defined in Section 7.1).




ARTICLE 2. RENT AND SECURITY




     2.1. Rent. Tenant shall pay Monthly Base Rent and Additional Rent and all other Rent
reserved herein all in accordance with the terms of Article 2 and the definitions set out in
Article 2. For purposes of this Lease, the term “Rent” means Monthly Base Rent, Additional Rent,
and any other sums or charges payable by Tenant (regardless of to whom payable) including, without
limitation, charges for overtime services under this Lease. For purposes of this Lease, the terms
“Monthly Base Rent” and “Additional Rent” shall have the meanings ascribed to such
terms in the Schedule of Incorporated Terms.



     2.2. Components of Rent. Tenant agrees to pay the following amounts in lawful
currency of the United States to Landlord at Landlord’s Address or at such other place as Landlord
may designate from time to time without further notice, demand, deduction, setoff or abatement,
except as expressly provided in this Lease:



15









 





          2.2.1. Monthly Base Rent. Tenant shall pay the Monthly Base Rent in advance on or
before the first day of each month of the Term, as set forth in the Schedule of Incorporated Terms.




          2.2.2. Additional Rent. Tenant shall pay Additional Rent in monthly installments, as
described below, in an amount equal to Tenant’s Proportionate Share of increases in Taxes above
Taxes in the Base Tax Year and Tenant’s Proportionate Share of increases in Operating Expenses
above Operating Expenses in the Base Expense Year. In addition, unless the Premises are separately
metered, Tenant shall pay Additional Rent consisting of the Electric Charge as set forth in Section
2.2.3 below.




               2.2.2.1 “Operating Expenses” means all expenditures, costs and disbursements
(exclusive of Taxes) paid or incurred by Landlord in connection with the ownership, administration,
management, maintenance, repair, replacement, improvement, alteration, and operation of the
Property or any part thereof, including by way of example rather than limitation all expenditures,
costs and disbursements relating to: all surfaces, coverings, decorative items, carpets, drapes,
window coverings, loading areas, trash areas, roadways, sidewalks, stairways, striping, bumpers,
irrigation systems, lighting facilities, building exterior and roofs, fences and gates; all
heating, ventilating and air conditioning equipment (“HVAC”), plumbing, mechanical,
electrical systems, life safety systems and equipment, telecommunication equipment, elevators,
escalators, tenant directories, fire detection systems including sprinkler system maintenance and
repairs; energy and utility services including water service, sewer service, natural gas, fuel oil
and electricity; janitorial service, trash removal, repairs and replacements of worn, damaged or
obsolete equipment and components, maintenance, service contracts, management fees, governmental
permits and overhead expenses; interior and exterior landscaping, parking lots serving the
Building, valets fees and costs; costs of operating the cafeteria and/or fitness center, including
subsidies provided to the operator thereof; snow removal and trash removal; security; legal
services, accounting fees, and consulting fees; professional fees; audit fees; salaries, wages,
fringe benefits, worker’s compensation insurance premiums and payroll taxes and union dues of
workers and other employees of Landlord and its property manager, and any management/leasing office
(but excluding any rent payable therefor); insurance premiums, fees and impositions, including any
deductibles; materials, supplies, and tools used in managing maintaining and/or cleaning the
Property; replacing, modifying and/or adding improvements or equipment mandated by any law,
statute, regulation or directive of any governmental agency and any repairs or approvals
necessitated thereby; payments made by Landlord under any easement, license, operating agreement,
declaration, restrictive covenant, or instrument pertaining to the payment or sharing of costs
among property owner; any business property taxes or personal property taxes imposed upon the
fixtures, machinery equipments, furniture and personal property used in connection with the
operation of the Property; other items attributable to operating or maintaining any or all of the
Property.



Notwithstanding the above listing of Operating Expenses, the following items are excluded:




          (a) Costs (including permit, license and inspection costs) of tenant alterations incurred
from renovating or otherwise improving, decorating, painting or redecorating vacant space for
tenants or other occupants of the Building;




          (b) Interest and principal payments, points and fees, and reserves and escrows on mortgages or
any other debt instrument encumbering the Building or the Land or any rental payments on any ground
leases;




          (c) Advertising expenses and leasing or brokerage commissions incurred in procuring new
tenants (including, without limitation, leasing commissions, space planning costs and other costs
and expenses incurred in connection with lease, sublease and/or assignment negotiations and
transactions with present or prospective tenants or other occupants of the Building);




16









 





          (d) Any cost or expenditure for which Landlord is actually reimbursed by insurance proceeds or
a condemnation award;




          (e) The cost of any goods or services furnished to any other tenant in the Building which
Landlord does not make generally available to tenants in the Building;




          (f) Legal expenses incurred in connection with negotiating and securing leases and preparation
of letters, deal memos, letters of intent, subleases and/or assignments and the enforcement of
leases;




          (g) Contributions to reserves, and expenditures made out of any reserve fund, contributions to
which have been made prior to the date hereof;




          (h) Expenses incurred in refinancing the Building or Property;




          (i) Charitable, political or religious contributions;




          (j) Costs incurred to remove, remedy, contain or treat any Environmental Hazards on, in or
about the Premises, the Building or the Property (including, without limitation, Environmental
Hazards in the ground water or soil) to the extent such Environmental Hazards are introduced into
the Property before or after the Lease Commencement Date by Landlord or Landlord’s agents,
employees or other tenants in violation of applicable laws in effect as of the date of
introduction;




          (k) Costs, fees and expenses associated with the formation and administration of the ownership
entity constituting Landlord, and of its affiliates, such as costs of tax returns or appraisals;




          (l) Costs for sculpture, paintings or other objects of art;




          (m) Costs to the extent incurred for any items to the extent covered by a manufacturer’s,
vendor or contractor’s warranty, provided that any charges for obtaining or maintaining such
warranties or guarantees or enforcing warranty or guarantee claims shall be included in Operating
Expenses, and Landlord agrees to use its good faith discretion in determining whether to pursue
such enforcement or collection efforts, but Landlord shall not be obligated to commence any suit or
arbitration proceeding to enforce or collect any such warranty or guarantee claims;




          (n) Costs of items considered capital repairs, replacements, improvements and equipment under
generally accepted accounting principles consistently applied or otherwise (“Capital
Items”), except for (1) the annual amortization (amortized over the useful life as determined
in accordance with GAAP) of costs, including financing costs, if any, incurred by Landlord after
the Lease Commencement Date for any capital improvements installed or paid for by Landlord and
required by any new (or change in) laws, rules or regulations of any governmental or
quasi-governmental authority which are enacted after the Lease Commencement Date; or (2) the annual
amortization (amortized over the useful life as determined in accordance with GAAP) of costs,
including financing costs, if any, of any equipment, device or capital improvement purchased or
incurred as a labor-saving measure or to affect other economics in the operation or maintenance of
the Building (provided that such savings do not redound primarily to the benefit of any particular
tenant other than Tenant); provided that such annual
amortized amount shall not exceed the actual cost savings (on an annual basis), as reasonably
determined by Landlord, achieved by the implementation/purchase of such capital repair,
replacement, improvement, or equipment. Notwithstanding the foregoing, costs for replacement of
the roof of the Building shall not be included in Operating Expenses;




17









 





          (o) Depreciation, amortization and interest payments (except on materials, tools, supplies and
vendor-type equipment purchased by Landlord in order to supply services it might otherwise contract
for with a third party and where such depreciation, amortization and interest payments would
otherwise have been included in the charge for such third party’s services), as determined in
accordance with generally accepted accounting principles, consistently applied, and when
depreciation or amortization is permitted or required, the item shall be amortized over its
reasonably anticipated useful life;




          (p) Rentals for items (except when needed in connection with normal repairs and maintenance or
otherwise includable in Operating Expenses), which, if purchased (rather than rented) would
constitute capital items specifically excluded under subsection (n) above (excluding, however,
equipment not affixed to the Building which is used in providing janitorial or similar services);




          (q) Any management fees in excess of four percent (4%) of gross receipts from the Property;




          (r) Overhead and profit increment paid to Landlord or to subsidiaries or affiliates of
Landlord for goods and/or services in the Building to the extent the same exceeds the costs of such
goods and/or services rendered by unaffiliated third parties on a competitive basis for comparable
buildings;




          (s) Landlord’s general corporate overhead and general and administrative expenses, provided,
however, a management fee and any personnel costs for service personnel that are related solely to
the maintenance, operation, repair or management of the Building may be included in Operating
Expenses;




          (t) Rentals and other related expenses incurred in leasing HVAC systems, elevators or other
equipment ordinarily considered to be Capital Items, except for: (i) expenses covered by item (n),
above, (ii) expenses in connection with making repairs on or keeping building systems in operation
while repairs are being made, and (iii) costs of equipment not affixed to the Building which is
used in providing janitorial or similar services;




          (u) Costs of signs in or on the Building identifying the owner of the Building or other
tenants’ signs;




          (v) The cost of any electric power used by any tenant in the Building in excess of the
Building’s standard amount, or electric power costs for which any tenant directly contracts with
the local public service company, or of which any tenant is separately metered or sub-metered and
pays Landlord or such utility directly, and repair costs due to damages caused by the misuse or
malfunctioning of any such tenant’s electric system;




          (w) Costs incurred in connection with upgrading the Building to comply with disability, life,
fire and safety codes, ordinances, statutes, or other laws in effect prior to the Lease
Commencement Date, including, without limitation, the ADA, including penalties or damages incurred
due to such non-compliance;




          (x) Tax penalties incurred as a result of Landlord’s negligence, inability or unwillingness to
make payments and/or to file any tax or informational returns when due (Tenant, however, shall be
responsible for any penalties incurred due to Tenant’s failure to timely make payments due
hereunder);




18









 





          (y) Costs arising solely from the negligence or willful misconduct or fault of other tenants
or Landlord or otherwise directly reimbursable by other tenants;




          (z) Costs arising from construction defects in the base, shell or core of the Building;




          (aa) Costs arising from any mandatory or voluntary special assessment on the Building by any
transit authority or any other governmental entity having the authority to impose such assessment
in connection with the initial construction of the Building;




          (bb) Costs of attorneys’ fees, settlement judgments and other payments arising from claims,
disputes or potential disputes in connection with potential or actual claims, litigation or
arbitration pertaining to the Landlord and/or the Building (other than costs associated with
disputes which in the good faith judgment of Landlord could result in the reduction of Operating
Expenses);




          (cc) Costs associated with the operation of the entity constituting Landlord, as distinguished
from Building’s operation costs, including accounting and legal costs, costs of defending any
lawsuits with any mortgagee, costs of selling, syndicating, financing, mortgaging or hypothecating
any of Landlord’s interest in the Building, costs of any disputes between Landlord and its
employees (if any) not engaged in Building’s operation, disputes of Landlord with Building’s
management, or outside fees paid in connection with disputes with other tenants;




          (dd) Costs of any “tap fees” or any sewer or water connection fees for the benefit of any
particular tenant in the Building;




          (ee) Any entertainment, dining or travel expenses of Landlord for any purpose;




          (ff) Any flowers, gifts, balloons, etc. provided to any entity whatsoever, including, but not
limited to, Tenant, other tenants, employees, vendors, contractors, prospective tenants and agents;




          (gg) Any “finders fees,” brokerage commissions, job placement costs or job advertising cost;




          (hh) Any “above-standard” cleaning, including, but not limited to construction cleanup (unless
such construction is includable in Operating Expenses) or special cleanings associated with
parties/events;




          (ii) The cost of any “tenant relations” parties, events or promotion not consented to by an
authorized representative of Tenant in writing; and/or




          (jj) “In-house” legal fees.




               2.2.2.2 “Taxes” means all taxes, assessments, betterments, excises, impositions, user
fees and all other governmental charges and fees of any kind or nature, or agreed payments in lieu
thereof or voluntary payments made in connection with the provision of governmental services or
improvements of benefit to the Building or the Land including any so-called linkage, and impact
betterment payments (but excluding any voluntary betterment payments) and all penalties and
interest
thereon assessed or imposed against the Premises or the Property of which the Premises are a
part including, without limitation, any personal property taxes levied on personal property of
Landlord or on fixtures or equipment used in connection with the Land or Building) or levied on
Landlord by virtue of its ownership thereof, other than a federal or state income tax of general
application. “Taxes” shall not include any franchise, rental, income, estate, inheritance,
transfer, documentary or profit tax, capital levy



19









 







or excise, provided, however, if during the Term
the present system of ad valorem taxation of property shall be changed so that, in lieu of or in
addition to the whole or any part of such ad valorem tax, there shall be assessed, levied or
imposed on the Property or Premises or on Landlord any kind or nature of federal, state, county,
municipal or other governmental capital levy, income, sales, franchise, excise or similar tax,
assessment, levy, charge or fee measured by or based in whole or in part upon Building valuation,
mortgage valuation, rents or any other incidents, benefits or measures of real property or real
property operations, then any and all of such taxes, assessments, levies, charges and fees shall be
included within the term Taxes, but only to the extent calculated as if the Building and the Land
is the only real estate owned by Landlord, provided that any additional taxes of general
application which also tax income or revenues from assets or sources other than real property shall
not be deemed a substitute for, or addition to, Taxes if such additional tax is not generally paid
by tenants of comparable Buildings located in the general vicinity of the Building. Taxes include
all reasonable expenses, including reasonable fees of attorneys, appraisers and other consultants,
incurred in connection with any good-faith efforts to obtain abatements or reductions or to assure
maintenance of Taxes for any tax fiscal year wholly or partially included in the Term, whether or
not successful and whether or not such efforts involve filing of actual abatement applications or
initiation of formal proceedings.



               2.2.2.3 Payment of Estimated Additional Rent. Prior to or as soon as practical after
the beginning of each new calendar year or partial calendar year during the Term, Landlord may
estimate the amount of Additional Rent consisting of Tenant’s Proportionate Share of the increases
in Operating Expenses and Taxes due for such calendar year, and Tenant shall pay to Landlord
one-twelfth of such estimate on the first day of each month during such calendar year. Such
estimate may be revised by Landlord whenever it obtains information relevant to making such
estimate more accurate, in which event Landlord shall deliver to Tenant a revised estimate in
writing and from and after Tenant’s receipt thereof, Tenant shall pay to Landlord one-twelfth of
such revised estimate on the first day of each month thereafter.



               2.2.2.4 Reconciliation of Additional Rent. After the end of each calendar year or
partial calendar year during the Term, Landlord shall deliver to Tenant a report setting forth the
actual Operating Expenses and Taxes for such calendar year and a statement of the amount of
Additional Rent in respect of increases in Operating Expenses and Taxes that Tenant has paid and is
payable for such calendar year (such report and statement, together, the “Landlord’s
Statement”). Within thirty (30) days after receipt of such Landlord’s Statement, Tenant shall
pay to Landlord the amount of Additional Rent in respect of increases in Operating Expenses and
Taxes due for such calendar year minus any payments of Additional Rent previously made by Tenant
for such calendar year. If Tenant’s estimated payments of Additional Rent consisting of Tenant’s
Proportionate Share of the increases in Operating Expenses and Taxes exceed the amount due Landlord
for such calendar year, Landlord shall apply such excess as a credit against future installments of
Additional Rent or, if the Term has expired, and provided Tenant is not then in default hereunder,
Landlord shall promptly refund such excess to Tenant, in either case without interest to Tenant,
except as provided below.



               2.2.2.5 Inspection of Records. At the written request of Tenant, at any time within
six (6) months after Landlord delivers Landlord’s Statement to Tenant (the “Review
Period”), Tenant or its authorized representative, at Tenant’s sole expense, shall have the
right to examine Landlord’s books and records applicable to Operating Expenses and Taxes for the
period covered by such Landlord’s Statement only. Such right to examine Landlord’s books and
records shall be exercisable: (i)
upon reasonable advance notice to Landlord and at reasonable times during Landlord’s business
hours; (ii) only during the six (6) month period following Tenant’s receipt of Landlord’s Statement
and shall be subject to the following terms and conditions: (a) the review may only be conducted by
Tenant or by an independent certified public accountant retained by Tenant or Tenant’s authorized
representative and that is not compensated on a contingency basis; (b) prior to reviewing any of
Landlord’s books and records,



20









 







Tenant and the independent certified public accountant who will
perform the review shall have executed a confidentiality agreement in form and substance reasonably
satisfactory to Landlord. In the event such review of Landlord’s Operating Expenses and Taxes for
such period discloses that certain items were improperly or incorrectly included or calculated in
Operating Expenses and/or Taxes and resulted in an overcharge to Tenant, and an audit conducted by
Landlord agrees with such conclusion, then Landlord shall, within sixty (60) days after receipt
from the Tenant of demand therefor, together with a copy of the results of the audit, refund to
Tenant the overage, together with interest thereon at the Default Rate (defined below). In the
event that Landlord’s audit disputes the conclusion of Tenant’s audit, Landlord, within thirty (30)
days of the completion of Landlord’s audit, shall notify Tenant in writing of the results of
Landlord’s audit (“Landlord’s Notice”), which notice shall include a copy of such
Landlord’s audit. Landlord and Tenant shall then, for a period of thirty (30) days from the date
of Landlord’s Notice negotiate in good faith to resolve such disagreement. If, however, after such
thirty (30) days period, Landlord and Tenant have not resolved such matter, either party may apply
to the American Arbitration Association, or any successor thereto, in order to resolve such dispute
by arbitration. If Landlord’s Operating Expenses and/or Taxes payable by Tenant for such year has
been overstated in Landlord’s Statement by more than five percent (5%), then Landlord shall
reimburse Tenant for the reasonable and actual third-party costs of conducting Tenant’s audit.
Should Tenant fail to object to any Landlord’s Statement within the applicable Review Period,
Tenant shall be conclusively deemed to have approved such Landlord’s Statement and the
reconciliation set forth therein, and Tenant expressly waives any further right to object to such
Landlord’s Statement or any of the charges set forth therein or to assert any claim arising
therefrom. Notwithstanding anything herein to the contrary, Tenant shall pay all installments of
Additional Rent as and when due.



          2.2.3. Electricity. Tenant shall pay, directly to the appropriate utility provider,
any and all costs of electricity utilized in the Premises and in support of any of Tenant’s
equipment, wherever located. In the event that the Premises are not separately metered, (a)
Tenant’s use of electricity in the Premises shall be measured by a checkmeter or a submeter serving
the Premises, or (b) Tenant may arrange, at Tenant’s sole cost and expense, with the utility
company providing electricity to the Building to install a separate meter serving the Premises,
provided that the installation of such separate meter shall not, at any time, interfere with the
provision of electricity to the Building or with Landlord’s ability to contract with a utility
company of its choosing, and provided further than Tenant shall, at Landlord’s request, provide
Landlord with copies of Tenant’s correspondence with such electric company, and any work performed
by the electric company in connection with the installation of such separate meter shall be
approved by Landlord (such approval not to be unreasonably withheld) prior to commencement thereof.
The Tenant shall pay to Landlord, as Additional Rent, the amount determined by applying the
electric rate at which Landlord purchases electricity (including taxes and surcharges thereon) to
Tenant’s consumption of and demand for electricity as recorded on the checkmeter measuring Tenant’s
utilization of electricity or based on such proportionate usage by Tenant (the “Electric
Charge”). Landlord shall cause Tenant’s checkmeter to be read at regular intervals. Upon
receipt by Landlord of an invoice from the utility company supplying electricity to the Building,
Landlord shall bill Tenant in accordance with the foregoing.



At Landlord’s option, and if applicable, Tenant shall pay the Electric Charge in twelve (12) equal
monthly installments on the first day of each month, based upon Landlord’s reasonable estimate of
the Electric Charge, or otherwise as Landlord elects. After the end of each calendar year,
Landlord shall furnish Tenant a written statement of the actual Electric Charge. If Tenant has
underpaid, Tenant shall pay the
amount shown on said statement and if Tenant has overpaid, Landlord shall credit the difference
against the next installment of Additional Rent due hereunder or pay the difference to Tenant. If
Landlord makes the election provided in this paragraph, within ninety (90) days after the beginning
of each new calendar year during the Term, Landlord may deliver to Tenant a revised estimate, in
writing, of the Electric Charge. If Landlord makes the election provided in this paragraph, for
each new calendar year, until such




21









 




time as Tenant receives an updated or revised estimate, Tenant
shall continue to pay the Electric Charge based on the estimated rate for the previous year.




     2.3. Agreements Concerning Payment. The following provisions shall govern the payment
of Rent: (i) if the Lease Commencement Date or the Expiration Date is on a day other than the
first day of a calendar month, the Rent shall be prorated and adjusted accordingly; (ii) all Rent
shall be paid to Landlord in lawful money of the United States of America, without offset,
deduction, diminution, notice or demand at the address of Landlord, except as expressly provided in
this Lease, and the covenant to pay Rent shall be independent of every other covenant in this
Lease; (iii) if during all or any portion of any calendar year during the Term, the Building is not
ninety-five percent (95%) occupied by tenants, Landlord may elect to make an appropriate adjustment
of those Operating Expenses that vary with occupancy to determine the Operating Expenses that would
have been paid or incurred by Landlord had the building been ninety-five percent (95%) occupied by
tenants for the entire calendar year and the amount so determined shall be the Operating Expenses
for such calendar year; provided, however, that the terms of this Section 2.3(iii) shall be applied
for the Base Expense Year and each subsequent year during the Term, and provided further that
Tenant shall not be required to pay to Landlord any Operating Expenses that vary with occupancy in
excess of the amount Landlord actually pays on account thereof with respect to the Building; (iv)
in the event of the expiration or earlier termination of this Lease prior to the determination of
any Additional Rent, Tenant’s agreement to pay any such sums and Landlord’s obligation to refund
any such sums (provided Tenant is not in default hereunder) shall survive the expiration or
termination of this Lease; (v) each amount owed to Landlord under this Lease for which the date of
payment is not expressly fixed shall be due within 30 days after invoice; and (vi) if Landlord
fails to give Tenant an estimate of Additional Rent prior to the beginning of any calendar year,
Tenant shall continue to pay Additional Rent at the rate for the previous calendar year until
Landlord delivers such estimate.



          2.3.1. No Accord and Satisfaction. No payment by Tenant or receipt and acceptance by
Landlord of a lesser amount than the Monthly Base Rent or Additional Rent shall be deemed to be
other than part payment of the full amount then due and payable; nor shall any endorsement or
statement on any check or any letter accompanying any check, payment of Rent or other payment, be
deemed an accord and satisfaction; and Landlord may accept, but is not obligated to accept, such
part payment without prejudice to Landlord’s right to recover the balance due and payable or to
pursue any other remedy provided in this Lease or by law. If Landlord at any time accepts Rent
after it becomes due and payable, such acceptance shall not excuse a subsequent delay or constitute
a waiver of Landlord’s rights hereunder.




     2.4. Interest; Late Charges. Any sum due from Tenant to Landlord which is not paid
within ten (10) days of the date due shall bear interest from the date due until the date paid at
the prevailing prime rate of interest as published in the Money Rates section of The Wall Street
Journal or as established by any successor or alternate national financial publication plus four
percent (4%), but in no event higher than the maximum rate permitted by law (the “Default
Rate”).



     2.5. Holdover Rent. If Tenant fails to yield up the Premises in accordance with the
requirements of this Lease after the expiration or earlier termination of the Term or the
termination of Tenant’s right to possession of the Premises, Tenant shall pay use and occupancy
charges during such holding over at 150% of the Rent in effect during the last month of the Term.
All use and occupancy charges payable during the period of Tenant’s holding over shall be computed
on a monthly basis for each month or partial month until Tenant yields up the Premises in
accordance with the requirements of the
Lease. Tenant shall also pay, hold harmless, indemnify and defend Landlord from and against
all direct claims and damages sustained by reason of Tenant’s holding over, including, not limited
to, losses due to termination of leases or required payment of late delivery fees, accruing as a
result of Tenant’s holding over. The provisions of this Section do not waive Landlord’s right of
re-entry or right to regain possession by actions at law or in equity or any other rights
hereunder, and any receipt of payment by Landlord shall



22









 







not be deemed a consent by Landlord to
Tenant’s remaining in possession or be construed as creating or renewing any lease or right of
tenancy between Landlord and Tenant.



     2.6. Letter of Credit. Concurrently with the execution and delivery of this Lease by
Tenant, Tenant shall deliver to Landlord an irrevocable letter of credit in the amount of
$603,466.50 in the form of Appendix 2.6 attached hereto issued by a national bank or other
financial institution reasonably acceptable to Landlord (the “Letter of Credit”), subject
to reduction as set forth below. In the event Tenant defaults in the performance of any of the
terms of this Lease, including the payment of Rent, Landlord may draw upon, use, apply or retain
the whole or any part of the Letter of Credit to the extent required for the payment of any Rent or
for any sum which Landlord may expend or may be required to expend by reason of Tenant’s default in
respect of any of the terms of this Lease, including any damages or deficiency in the re-letting of
the Premises, whether accruing before or after summary proceedings or other re-entry by Landlord.
In the case of every such draw down, use, application or retention, Tenant shall, on demand,
increase the available balance of the Letter of Credit by the amount so drawn, used, applied or
retained to its former amount, and Tenant’s failure to do so shall be a material breach of this
Lease. The application of the Letter of credit hereunder shall not be deemed a limitation on
Landlord’s damages or a payment of liquidated damages or a payment of the monthly Rent due for the
last month of the Term of this Lease. In the event that the issuer of the Letter of Credit
notifies Landlord that the Letter of Credit will not be renewed (as set forth on page 2 of the
Letter of Credit attached hereto as Appendix 2.6), Landlord may draw down on the Letter of
Credit if a replacement Letter of Credit is not delivered to Landlord at least thirty (30) days
prior to the expiration date of such letter of credit. If Landlord so draws on the Letter of
Credit, the funds so drawn shall be held by Landlord in accordance with the terms hereof a
non-interest bearing account, and may be applied by Landlord as set forth in this Section 2.6. The
Letter of Credit (or the proceeds thereof) or so much of it as has not been applied by Landlord to
cure defaults, shall be returned to Tenant within sixty (60) days after delivery of exclusive
possession of the Premises to Landlord in accordance with the terms of this Lease. In the event of
a sale or lease of the Building, Landlord shall have the right to transfer the Letter of Credit to
the vendee or lessee and upon such transfer, Landlord shall immediately and automatically be
released by Tenant from all liability for the return of such Letter of Credit; and upon such
transfer Tenant agrees to look solely to the new owner or landlord for the return of said Letter of
Credit. It is agreed that the provisions hereof shall apply to every transfer or assignment made
of the Letter of Credit to a new owner or landlord. Tenant shall not assign or encumber or attempt
to assign or encumber any monies or the Letter of Credit held by Landlord hereunder, and neither
Landlord nor its successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or encumbrance.


Notwithstanding anything to the contrary contained herein, so long as Tenant has never been in
Default under the terms of the Lease, the Letter of Credit may be reduced by $100,577.75 on the
first day of each of the second, third, fourth, fifth, and sixth Lease Years (such that if all
reductions have been made the Letter of Credit will be $100,577.75 for the last Lease Year). If
Tenant is not entitled to any one reduction, as set forth above, Tenant shall not be entitled to
any further reductions hereunder. If Tenant is entitled to a reduction of the Letter of Credit,
Tenant shall request Landlord’s consent to each such reduction, and upon Landlord’s approval
thereof, Tenant shall deliver to Landlord an amendment to the Letter of Credit setting forth the
new amount thereof. Provided that Tenant is entitled to a reduction of the Letter of Credit,
Landlord shall sign, in a reasonably timely manner, such documents as may be required by the issuer
of the Letter of Credit to obtain such reduction thereof.




     2.7. Deferred Rent. Landlord shall have the right in its sole and absolute discretion
to elect to defer, for such time period as determined by Landlord in its sole discretion, Monthly
Base Rent upon not less than thirty (30) days prior written notice to Tenant. The amount of
Monthly Base Rent Landlord elects to defer shall be referred to as the “Deferred Rent.” As
directed in writing by Landlord in its sole and absolute discretion, the Deferred Rent shall be
paid by Tenant to Landlord by having the Deferred



23









 







Rent amortized on a straight line basis, without
interest, over the remaining initial Term and added to the Monthly Base Rent then remaining over
the initial Term commencing on the first day of a calendar month immediately following the end of
the period for which Landlord has determined that the deferral of Deferred Rent applies. Tenant
shall execute any amendment to the Lease to reflect the amount and schedule for payment of the
Deferred Rent within twenty (20) days after request by Landlord.



ARTICLE 3. TENANT’S COVENANTS




     3.1. Use.



          3.1.1. Use and Compliance with Legal Requirements and with Rules and Regulations.
Landlord represents that Landlord has not received notice from any governmental authority or other
third party that the Building is in violation of any Legal Requirement (as defined below). Tenant
and its invitees shall comply with all federal, state and local laws, statutes, codes, ordinances
and regulations, rules, directives and orders (including, without limitation, building codes,
zoning regulations and ordinances, environmental laws, occupational health and safety laws and the
Americans with Disabilities Act of 1990, as amended (“ADA”) (collectively, “Legal
Requirements”) applicable to Tenant’s particular use or occupancy of the Premises (as opposed
to the Permitted Use in general); provided, however, in no event shall Tenant be responsible or
liable for, or obligated to cure, any noncompliance with Legal Requirements existing as of the
Lease Commencement Date, nor shall Tenant be responsible for any future violation of the ADA in the
Premises that results in whole or in part, from Landlord’s or any other tenant’s acts or omissions
or improvements to the Building. Tenant and its invitees shall comply with all covenants,
conditions and restrictions of record which are applicable to Tenant’s use or occupancy of the
Premises and of which Tenant has been delivered copies. Subject to the foregoing, Tenant’s use of
the Premises and the Common Areas of the Property shall comply in all respects with Legal
Requirements and with the Rules and Regulations set forth in Appendix 1.1.1 hereof, as such
Rules and Regulations may be modified or restated by Landlord from time to time in a reasonable and
nondiscriminatory manner. Provided that Tenant is not in Default hereunder, Landlord shall not
enter into any restriction or covenant that is inconsistent with Tenant’s rights hereunder.




          3.1.2. Permitted Use. Tenant shall occupy and use the Premises only for the Permitted
Use and for no other purpose whatsoever. Without limiting the generality of the foregoing, or
anything else herein to the contrary, in no event shall Tenant ever use the Premises or any part
thereof, or any part of the Common Areas of the Property to conduct any auction or public or
private sale.




          3.1.3. Floor Loading; Noise and Vibration. Tenant shall not place any excessive load
upon any floor of the Premises. Landlord reserves the right to prescribe in a reasonable manner
the weight and position of all batteries or other heavy installations or equipment which Tenant
wishes to place in the Premises so as to properly distribute the weight thereof. Machines and
mechanical equipment belonging to Tenant which cause unreasonable noise or vibration that may be
transmitted to the structure of the Building or to any leased or licensed space to such a degree as
to be objectionable to Landlord or to any tenants, occupants or licensees in the Building shall be
placed and maintained by Tenant, at Tenant’s expense, on vibration eliminators or other devices
sufficient to eliminate such unreasonable noise or vibration. If, in Landlord’s reasonable
judgment, the noise or vibration from any such equipment will cause harm to the Building structure
or systems, or disturb Landlord or any other tenant, occupant or
licensee of the Building, Landlord may require Tenant to remove or discontinue the use of any
such equipment if not remedied in a manner satisfactory to Landlord in its reasonable discretion.




     3.2. Observe Rules and Regulations. Tenant shall observe and comply with and shall
cause its invitees, licensees, customers, employees, contractors and agents to observe and comply
with the Rules and Regulations set forth on Appendix 1.1.1 attached hereto and incorporated
herein by this reference and



24









 







with such reasonable and nondiscriminatory modifications, restatements
and additions thereto as Landlord may make from time to time. Landlord shall not be liable for
failure of any person to obey such Rules and Regulations. Landlord shall not be obligated to
enforce such Rules and Regulations against any person, and the failure of Landlord to enforce any
such Rules and Regulations shall not constitute a waiver thereof or relieve Tenant from compliance
therewith.



     3.3. Hazardous Material. For purposes of this Lease “Hazardous Material”
means any flammable items, explosives, radioactive material, oil, toxic substance, material or
waste or related materials, including any material or substance included in the definition of
“hazardous wastes”, “hazardous materials” or “toxic substances”, now or
hereafter regulated under any Legal Requirements, including, without limitation, petroleum-based
products, paints, solvents, lead cyanide, DDT, printing inks, acids, pesticides, ammonia compounds
and other chemical products, asbestos, medical waste, polychlorinated biphenyls, and similar
compounds. “Hazardous Material” shall also include, without limitation, any materials or
substances which could trigger any employee “right to know” requirements or for which any
regulatory or other governmental body has adopted any requirements for the preparation or
distribution of a material safety data sheet. Tenant shall not cause or permit any Hazardous
Material to be brought upon, produced, stored, generated, used, discharged or disposed of in, on,
under or about the Premises without the prior written consent of Landlord and then only in
compliance with all applicable environmental Legal Requirements. Notwithstanding the preceding
sentence, Tenant shall be permitted to store commercially reasonable amounts of standard office
supplies and cleaning products in the Premises for use in the Premises, provided Tenant complies in
all respects with all applicable environmental Legal Requirements. Tenant shall defend, indemnify
and hold harmless Landlord from and against any and all claims (including, without limitation,
costs and attorney’s fees) arising from any breach of this Section 3.3. The indemnity, defense and
hold harmless obligations in this Section 3.3 shall be in addition to all other indemnity, defense
and hold harmless obligations contained in this Lease.



     3.4 Maintenance and Repair. Tenant, at its sole cost and expense, shall maintain and
keep the Premises (with the exception of items to be maintained by Landlord), including, without
limitation, all interior glass, interior windows, interior doors, tenant improvements, all
Alterations (as defined in Section 3.5.1) to the Premises, and all fixtures, neat and clean and in
good order and repair at all times during the Term, reasonable wear and tear excepted. If any
portion of the Premises or any system or equipment in, or serving, the Premises which Tenant is
obligated to repair cannot be fully repaired, Tenant, at Tenant’s option, shall replace such
portion of the Premises, system, or equipment (Tenant acknowledging that Landlord shall have no
obligation to replace any such portion of the Premises, systems, or equipment). If Tenant is in
Default for failure to perform its obligations under this Section 3.4, and if the continued failure
to perform such obligation(s) will materially and adversely affect the Premises or the Property,
then Landlord may perform such obligations and Tenant will pay as additional Rent to Landlord the
cost of such performance, including an amount sufficient to reimburse Landlord for overhead and
supervision, within fifteen (15) days after receipt of Landlord’s written demand therefor. For
purposes of performing such obligations, or to inspect the Premises, Landlord may enter the
Premises upon reasonable prior notice to Tenant (except in cases of actual or suspected emergency,
in which case no prior notice will be required) without liability to Tenant for any loss or damage
incurred as a result of such entry (except if directly due to or as a result of the gross
negligence or willful misconduct of Landlord, provided, however, Landlord shall have no liability
for any special or consequential damages suffered either by Tenant or any
party claiming through Tenant); Landlord will take reasonable steps in connection with such
entry to minimize any disruption to Tenant’s business or its use of the Premises.



     3.5. Alterations.



          3.5.1. Alterations Prohibited Without Landlord Consent. Tenant shall not make any
replacement, alteration, improvement or addition to or removal from (collectively an
“Alteration”) the





25











 




Premises other than Permitted Alterations (as hereinafter defined) unless
Tenant complies with all of the terms and conditions of Appendix 1.3.3. All Alterations,
whether temporary or permanent in character, unless otherwise specified, made by Landlord or Tenant
in or upon the Premises (excepting only Tenants furniture, removable equipment and removable trade
fixtures) shall become Landlord’s property and shall remain upon the Premises at the expiration or
earlier termination of this Lease, without compensation to Tenant; provided, however, that Landlord
shall have the right to require Tenant to remove such Alteration at Tenant’s sole cost and expense
to the extent set forth in, and in accordance with, Section 1.4.2 of this Lease. “Permitted
Alterations” means any Alterations in the Premises which are non-structural, cosmetic
Alterations to the interior of the Premises and that do not (1) affect the Building’s structure or
any Building system or service, any fixture or equipment related thereto or a part thereof, or the
structural integrity of the Building; and (2) do not cost more than One Hundred Thousand Dollars
($100,000.00) in any twelve-month period following the Lease Commencement Date.




          3.5.2. ADA Compliance. Tenant acknowledges that the Premises may constitute a place
of public accommodation or a commercial facility under Title III of the Americans with Disabilities
Act (the “ADA”) and that the ADA is applicable to both an owner and a lessee of a place of
public accommodation or commercial facility. Tenant further acknowledges that under the ADA, any
alteration to the Premises must comply with accessibility standards set forth in the rules
promulgated by the Department of Justice at 28 C.F.R. 36.101 et. seq. Notwithstanding anything in
this Lease to the contrary, in the event Tenant makes any alteration to the Premises which would
require compliance with Title III of the ADA and the accessibility standards promulgated by the
Department of Justice, Tenant agrees to design and build such alterations so as to comply with the
ADA and the accessibility standards. Landlord acknowledges that it is responsible for the
compliance of the Common Areas with the ADA. Notwithstanding the foregoing, Tenant shall not be
responsible for any ADA compliance resulting in whole or in part from alterations installed by
Landlord or any other tenant in the Building.




     3.6. Heating, Ventilation and Cooling. If Tenant installs any machines, equipment or
devices in or about the Premises that do not constitute customary office equipment and such
machines, equipment or devices cause the temperature in any part of the Premises to exceed (other
than to a de minimus extent) the temperature the Building’s mechanical system would be able to
maintain in the Premises were it not for such machines, equipment or devices, then, unless Tenant
eliminates the need for the same within 30 days after written notice from Landlord or agrees to
install supplementary air conditioning units, Landlord reserves the right to install, upon prior
notice to Tenant, supplementary air conditioning units in the Premises or elsewhere in the
Building, and Tenant will pay to Landlord all reasonable costs of installing, operating and
maintaining such supplementary units.



     3.7. Tenant’s Property. All the furnishings, fixtures, equipment, effects and
property of every kind, nature and description of Tenant and of all persons claiming by, through or
under Tenant which, during the Term of this Lease or any occupancy of the Premises by Tenant or
anyone claiming under Tenant, may be on the Premises, shall be at the sole risk and hazard of
Tenant, and if the whole or any part thereof shall be destroyed or damaged by fire, water or
otherwise, or by the leakage or bursting of water pipes, steam pipes, or other pipes, by theft, or
from any other cause or casualty, no part of said loss or damage is to be charged to or to be borne
by Landlord unless due to the negligence of Landlord.



     3.8. Assignment and Subletting. Without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, conditioned or delayed, Tenant shall not, except as
otherwise permitted herein, (i) assign, convey, mortgage or otherwise transfer this Lease or any
interest hereunder, or sublease the Premises, or any part thereof, whether voluntarily or by
operation of law, or (ii) permit the use of the Premises or any part thereof by any person other
than Tenant and its employees. Any such transfer, sublease or use described in the preceding
sentence requiring Landlord’s consent that is done without the prior written consent of Landlord
shall be void and of no effect. Notwithstanding the



26









 







foregoing, affiliates of Tenant and their
employees may occupy the Premises without Landlord’s consent, provided that such parties shall be
covered by the Tenant’s insurance, Landlord shall have no responsibility, obligation, or liability
to, or privity of contract with, such parties, Tenant shall be fully responsible for such parties
(and all indemnities of Tenant shall include such parties), and such parties shall comply with the
terms and provisions of the Lease applicable to the use of the Premises.



          3.8.1. “Transfer” Defined. Except for transfers described in Section 3.8.4 hereof,
the term “transfer” or “Transfer” as used in this Section 3.8 or any subsection
thereof shall include any of the following, whether voluntary or involuntary and whether effected
by death, operation of law or otherwise:




          (a) If Tenant is a partnership, limited liability company or other entity other than a
corporation described in Section 3.8.1(b) below:




               (1) A change in ownership effected voluntarily, involuntarily, or by operation of law of fifty
percent (50%) or more of the partners or members or fifty percent (50%) or more in the aggregate of
the partnership or membership interests, whether in a single transaction or series of transactions
over a period of time, or



               (2) The sale, mortgage, hypothecation, pledge or other encumbrance at any time of more than an
aggregate of fifty percent (50%) in the aggregate of the value of Tenant’s assets, whether in a
single transaction or series of transactions over a period of time; or



               (3) The dissolution of the partnership or limited liability company without its immediate
reconstitution.



          (b) If Tenant is a closely held corporation (i.e., one whose stock is not publicly held and
not traded through an exchange or over the counter):




               (1) The sale or other transfer of more than an aggregate of fifty percent (50%) of the voting
shares of Tenant or more in the aggregate, whether in a single transaction or series of
transactions over a period of time;



               (2) The sale, mortgage, hypothecation, pledge or other encumbrance at any time of more than an
aggregate of fifty percent (50%) in the aggregate of the value of Tenant’s assets, whether in a
single transaction or series of transactions over a period of time; or



               (3) The dissolution, merger, consolidation, or other reorganization of Tenant.


Notwithstanding the foregoing or anything to the contrary contained in this Lease, none of the
foregoing shall constitute a transfer or Transfer when Tenant is a publicly traded entity.




          3.8.2. No Transfer Without Consent. Except for a Transfer described in Section 3.8.4
hereof, Tenant shall not suffer a Transfer or any interest therein, or any part thereof, or any
right or privilege appurtenant thereto without the prior written consent of Landlord, which will
not be unreasonably withheld, and a consent to one Transfer shall not be deemed to be a consent to
any subsequent Transfer. The consent by Landlord to any Transfer shall not include consent to the
assignment or transferring of any lease renewal option rights or space option rights of the
Premises, special privileges or extra services granted to Tenant by this Lease, or addendum or
amendment thereto or letter of agreement (and such options, rights, privileges or services shall
terminate upon such assignment), unless Landlord specifically grants in writing such options,
rights, privileges or services to such assignee or subtenant.




27









 








          3.8.3. When Consent Granted. The consent of Landlord to a Transfer may not be
unreasonably withheld, provided that it is agreed to be reasonable for Landlord to consider any of
the following reasons, which list is not exclusive, in electing to deny consent:




          (a) The financial strength of the proposed transferee (taking into account a parent or
affiliate guaranty and Tenant’s continuing liability hereunder) at the time of the proposed
Transfer is not sufficient to perform the obligations of the tenant under this Lease;




          (b) The existence of any Default by Tenant under any provision of this Lease; or




          (c) Either the proposed transferee, or any person or entity which directly or indirectly,
controls, is controlled by, or is under common control with, the proposed transferee or an
affiliate of the proposed transferee, (i) occupies space in the Building at the time of the request
for consent unless the space offered by Landlord to such party is not desired by such party, or
(ii) is negotiating with Landlord to lease space in the Building at such time;




          3.8.4. Affiliated Transfer. Notwithstanding the foregoing, Landlord’s consent is not
required for any Transfer to an Affiliate, as defined below, as long as the following conditions
are met:




          (a) At least ten (10) business days before the Transfer, Landlord receives written notice of
the Transfer (as well as any documents or information reasonably requested by Landlord regarding
the Transfer or transferee);




          (b) The Transfer is not a subterfuge by Tenant to avoid its obligations under this Lease; and




          (c) If the Transfer is an assignment, Transferee assumes in writing all of Tenant’s
obligations under this Lease relating to the Premises.




          For purposes hereof, the term “Affiliate” means any entity that controls, is
controlled by, or is under common control with Tenant. “Control” means the direct or
indirect ownership of more than fifty percent (50%) of the voting securities of an entity or
possession of the right to vote more than fifty percent (50%) of the voting interest in the
ordinary direction of the entity’s affairs.




In addition to the foregoing, and notwithstanding anything to the contrary contained in this Lease,
Tenant shall have the right, without the consent of Landlord, to assign this Lease or sublet the
Premises to any entity which (i) acquires all or substantially all of the assets or ownership
interests of Tenant, or (ii) is the resulting entity of a merger, consolidation or other
reorganization of Tenant.




          3.8.5. Procedure for Obtaining Consent. In the event Tenant desires to sublet, or
permit such occupancy of, the Premises, or any portion thereof, or assign this Lease, or otherwise
enter into a Transfer other than as provided in Section 3.8.4, Tenant shall give written notice
thereof to Landlord at least thirty (30) days but no more than one hundred twenty (120) days prior
to the proposed commencement date of such subletting or assignment or Transfer, which notice shall set forth
the name of the proposed subtenant, assignee or transferee, the material business terms of any
sublease or assignment and copies of financial reports and other relevant financial information of
the proposed subtenant or assignee reasonably requested by Landlord. Landlord shall review such
information promptly and consent or withhold its consent (with specific reasons) within 10 business
days of receipt of all such information.




28









 








          3.8.6. Intentionally Deleted.




          3.8.7. Effect of Transfer. If Landlord consents to a Transfer the following
conditions shall apply:




          (a) Each and every covenant, condition or obligation imposed upon Tenant by this Lease and
each and every right, remedy or benefit afforded Landlord by this Lease shall not be impaired or
diminished as a result of such Transfer.




          (b) With respect to sublease transactions (other than subleases to Affiliates), Tenant shall
pay to Landlord fifty percent (50%) of the excess of any rents or other economic consideration
received by Tenant from the Transferee for the use and occupancy of the Premises over the aggregate
of the total sums which Tenant pays Landlord under this Lease, or the prorated portion thereof if
the Premises transferred is less than the entire Premises, prorated over the sublease term, less
the amortized amount of all costs incurred by Tenant in connection with the sublease, including,
without limitation, brokerage commissions, marketing expenses, attorneys fees, consultants fees,
tenant improvement costs, free rent and other related costs and expenses. The amount so derived
shall be paid with Tenant’s payment of Monthly Base Rent.




          (c) No Transfer, whether or not consent of Landlord is required hereunder, shall relieve
Tenant of its primary obligation to pay the rent and to perform all other obligations to be
performed by Tenant hereunder, except for the transactions described in the last sentence of
Section 3.8.4. The acceptance of rent by Landlord from any person shall not be deemed to be a
waiver by Landlord of any provision of this Lease or to be a consent to any Transfer of the
Premises.




          (d) If Landlord consents to a sublease, such sublease shall not extend beyond the expiration
of the Term of this Lease.




          (e) No Transfer shall be valid and no transferee shall take possession of the Premises or any
part thereof unless Tenant shall deliver to Landlord, on or prior to the effective date of such
Transfer, a duly executed duplicate original or a certified copy of the Transfer instrument in form
satisfactory to Landlord which provides that (i) the transferee, if an assignee, assumes Tenant’s
obligations for the payment of rent and for the full and faithful observance and performance of the
covenants, terms and conditions contained herein, (ii) such transferee, if a subtenant, at
Landlord’s election, attorn directly to Landlord in the event Tenant’s Lease is terminated for any
reason on the terms set forth in the instrument of transfer, and (iii) such instrument of transfer
contains such other assurances as Landlord reasonably deems necessary.




          3.8.8. Costs. Tenant shall reimburse Landlord as additional rent for Landlord’s
reasonable costs and attorneys’ fees incurred in conjunction with the processing and documentation
of any proposed Transfer of the Premises, whether or not consent is granted, not to exceed
$1,500.00 in each case unless Tenant or its transferee requires material changes to Landlord’s form
of consent.




     3.9. Insurance.



          3.9.1. Coverages. Tenant, at its expense, shall maintain at all times during the Term
the following insurance policies: (i) all risk or substantial equivalent special form coverage
insuring the full replacement cost (without deduction for depreciation) of all tenant improvements,
alterations to the Premises, all plate glass, windows, doors and sky-lights, and all other property
owned or used by Tenant and located in the Premises or on the Property in any licensed areas, if
any, as well as against sprinkler damage, vandalism, and malicious mischief. Any proceeds from
such insurance shall be used for the repair or replacement of the property damaged or destroyed,
unless this Lease is terminated under an applicable provision of this Lease; (ii) commercial
general liability insurance and contractual liability



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insurance, with limits not less than
$2,000,000.00 combined single limit for personal injury, sickness or death or for damage to or
destruction of property for any one occurrence and $5,000,000.00 of umbrella coverage, and shall be
subject to periodic increases specified by Landlord and reasonably consistent with insurance
requirements imposed by landlords of similar properties in the general vicinity of the Property.
The liability insurance obtained under this Section 3.9.1 shall be primary and shall insure
Tenant’s indemnity, hold harmless and defense obligations under this Lease; (iii) Worker’s
Compensation Insurance (including Employer’s Liability Insurance) in the statutory amount covering
all employees of Tenant employed or performing services at the Premises, in order to provide the
statutory benefits required by the laws of the state in which the Premises are located; and (iv)
Automobile Liability Insurance, including but not limited to passenger liability, on all owned (if
applicable), non-owned, and hired vehicles used in connection with the Premises, with a combined
single limit per occurrence of not less than $1,000,000.00 per vehicle for injuries or death of one
or more persons or loss or damage to property.




     The amount and coverage of such insurance shall not limit Tenant’s liability, nor relieve
Tenant of any obligation under this Lease.



          3.9.2. General Provisions Relating to Insurance. The form of all such policies and
deductibles thereunder shall be subject to Landlord’s prior reasonable approval, such approval not
to be unreasonably withheld. All such policies shall be issued by insurers with a Best Rating of
“A” or better or a FPR of 7 or better, each as established by A.M. Best Company, and licensed to do
business in the Commonwealth of Massachusetts and shall contain a waiver of any rights of
subrogation thereunder. In addition, the policies shall name Landlord, Landlord’s property
manager, and any holder of a mortgage (“Mortgagee”) and their respective agents as
additional insureds (all such parties to be identified to Tenant in writing). Such policies shall
require at least thirty (30) days’ prior written notice to Landlord, any Mortgagee, and Landlord’s
property manager of termination or material modification and shall be primary and not contributory.
Tenant shall, at least fifteen (15) days prior to the Lease Commencement Date, and within five (5)
days prior to the expiration of each such policy, deliver to Landlord Evidence of Insurance (in
form ACORD 27 or its substantial equivalent) for each such policy evidencing the foregoing
insurance or renewal thereof, as the case may be. If Tenant fails to insure or maintain any
insurance (or provide satisfactory proof thereof) as required hereunder, Landlord may, after ten
(10) days written notice to Tenant, effect such insurance. In such event, Tenant, shall, on
demand, reimburse Landlord for of all premiums and expenses paid by Landlord in connection
therewith.




     3.10. Indemnity. Tenant agrees to indemnify, defend and hold harmless Landlord, its
property manager and their respective agents and employees, from and against any and all claims,
demands, actions, liabilities, damages, costs and expenses (including reasonable attorneys’ fees)
(collectively, “Claims”), for injuries to any persons and damage to or theft or
misappropriation or loss of property occurring in or about the Building or the Land and arising
from the use or occupancy of the Premises from and after the Lease Commencement Date or from any
activity, work, or thing done, permitted or suffered by Tenant in or about the Premises, the
Building or the Land (including, without limitation, any alteration by Tenant), except to the
extent, in each case, caused by Landlord’s negligence. Landlord agrees to indemnify, defend and
hold harmless Tenant from and against any and all Claims to the extent caused by
the negligence or willful misconduct of Landlord. The provisions of this Section shall
survive the termination of this Lease with respect to any claims or liability accruing prior to
such termination.



     3.11. Waiver. Tenant hereby releases Landlord, its property manager and their
respective agents and employees from, and waives all claims for, damage or injury to person or
property and loss of business sustained by Tenant and resulting from the Building or the Premises
or any part thereof or any equipment therein becoming in disrepair, or resulting from any accident
in or about the Building. This paragraph shall apply particularly, but not exclusively, to
flooding, damage caused by Building equipment



30









 







and apparatus, water, snow, frost, steam, excessive
heat or cold, broken glass, sewage, gas, odors, excessive noise or vibration or the bursting or
leaking of pipes, plumbing fixtures or sprinkler devices. Without limiting the generality of the
foregoing, Tenant waives all claims and rights of recovery against Landlord, its property manager
and their respective agents and employees for any loss or damage to any property of Tenant, which
loss or damage is insured against, or required to be insured against, by Tenant pursuant to Section
3.9 hereof, whether or not such loss or damage is due to the fault or negligence of Landlord, its
property manager or their respective agents or employees, and regardless of the amount of insurance
proceeds collected or collectible under any insurance policies in effect.



     3.12. No Liens. Tenant shall not permit mechanics’ or other liens to be placed upon
the Property, Premises or Tenant’s leasehold interest in connection with any work or service done
or purportedly done by or for the benefit of Tenant or its transferees. Tenant, within thirty (30)
days of written notice from Landlord, shall fully discharge any lien by settlement, by bonding or
by insuring over the lien in the manner prescribed by the applicable lien Law and, if Tenant fails
to do so, in addition to any other remedies available to Landlord, Landlord, at its option, may
bond, insure over or otherwise discharge the lien. Tenant shall reimburse Landlord for any amount
paid by Landlord, including, without limitation, reasonable attorneys’ fees.



     3.13. Intentionally Deleted.



     3.14. Taxes on Tenant’s Personal Property. Tenant shall pay, as and when due, any and
all taxes, impositions, assessments, and all other fees and charges of any kind or nature, or
agreed payments in lieu thereof, and all penalties and interest thereon, assessed or imposed
against any of Tenant’s property. Tenant shall use reasonable efforts to have its personal
property taxed separately from the Property. If any of Tenant’s personal property is taxed with
the Property, Tenant will pay Landlord the taxes for such personal property within ten (10) days
from the date Tenant receives a written statement from Landlord for such personal property taxes.



     3.15. Signage. Except as hereinafter provided and except for signs which are located
wholly within the interior of the Premises and which are not visible from the exterior of the
Premises, no signs shall be placed, erected, maintained or painted by Tenant at any place upon the
Premises, Building or the Property, except with Landlord’s prior written approval, in its sole
discretion. All Tenant signage shall comply with applicable Legal Requirements. Tenant shall be
responsible, at Tenant’s sole cost and expense, for obtaining any required approvals from the local
governmental authority in connection with the installation and maintenance of its signage, and
Landlord agrees to cooperate with Tenant, at no cost to Landlord, in connection therewith. Tenant
shall have the right to install, at Tenant’s sole cost and expense, (a) a sign at the entrance to
the Premises, (b) a sign on the exterior of the east tower of the Building (and no tenant other
than Tenant shall have the right to install exterior signage on the east tower of the Building),
and (c) signage on the monument sign serving the Property, the size of which shall be based upon
Tenant’s Proportionate Share of the total size of such monument sign. The location, size, graphics
and plans and specification for the Tenant’s signs shall be subject to the approval of Landlord,
which will not be unreasonably withheld; provided that in all events, it is Tenant’s responsibility
to ensure that such signage complies with applicable Legal Requirements. Prior to seeking any
governmental
approval or permit for Tenant’s signs, Tenant shall deliver a copy of the plans and
specifications and graphics for Tenant’s signs for review and approval by Landlord. Tenant shall
pay for all costs, expenses and other charges for the installation, maintenance and removal of
Tenant’s signs and repair of any damage to the Building or monument sign in connection therewith.
Tenant’s signs shall be designed, manufactured and installed by contractors qualified to design,
manufacture and install professional commercial signs and subject contractors shall be subject to
the approval of Landlord in its reasonable discretion. Tenant shall maintain Tenant’s signs in a
neat and attractive condition.



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     3.16. Reimbursement for Costs of Repairs to the Building and/or Land. Tenant shall
reimburse Landlord for the cost of any repairs to the Building or the Land necessitated by the
grossly negligent or intentional acts or omissions of Tenant, its invitees, licensees, customers,
employees, contractors and agents which is not covered by insurance carried by Landlord or Tenant
within thirty (30) days after receipt of Landlord’s written demand therefor.



     3.17. ERISA Certificate. Upon execution of this Lease and from time to time upon
Landlord’s request, Tenant shall provide Landlord with such information as Landlord may reasonably
require to evaluate compliance of this Lease with the Employee Retirement Income Security Act of
1974, as amended.



     3.18. Notice of Accidents. Tenant shall give notice to Landlord, promptly after
Tenant learns thereof, of any accident, emergency, occurrence for which Landlord might be liable,
fire or other casualty and all damages to or defects in the Premises, the Building or the Building
systems, for the repair of which Landlord might be responsible or which constitutes Landlord’s
property. Such notice shall be given by facsimile or personal delivery to the address of Landlord
then in effect for notices.



ARTICLE 4. LANDLORD’S COVENANTS




          4.1. Provision of Utilities and Services. Landlord agrees to furnish or cause to be
furnished to the Premises the utilities and other services specifically described in this Article
4.




          4.1.1 Electricity. Landlord will arrange for electric service to be available at the
Premises for Tenant’s reasonable uses for HVAC, lighting, electrical appliances and Tenant’s
equipment. Tenant may not use any electrical appliances or equipment which, in the reasonable
opinion of Landlord, might overload the electrical risers, panels, switches, wiring or other
electrical equipment or interfere with the use thereof by other tenants of the Building. If Tenant
requires electric current, water or any other utilities in excess of the amounts available to the
Premises, such excess electric, water or other utility requirements will be supplied only with
Landlord’s consent, which consent will not be unreasonably withheld provided that the Building
systems are capable of providing such additional service(s) and that the provision of such
additional services will not, as reasonably determined by Landlord, be detrimental to other space
in the Building or deprive other space in the Building of adequate services to operate to general
office uses. Tenant will contract directly with the appropriate utility company or other party to
install, at Tenant’s sole cost and expense, such additional service(s); provided, however, Landlord
shall approve all installation plans and, at Landlord’s option, shall supervise such installation.
Tenant will also pay the actual cost of such additional service.




          4.1.2. HVAC. Landlord shall furnish heating and cooling as normal seasonal changes
may require to provide reasonably comfortable space temperature and ventilation for occupants of
the Premises under normal business operation, Monday through Friday, inclusive, from 8:00 a.m. to
6:00 p.m. and Saturday from 9:00 a.m. to 1:00 p.m., holidays excepted (hereinafter referred to as
“Normal Business Hours”). In the event Tenant desires HVAC service for periods beyond
Normal Business Hours, Tenant shall notify Landlord at least twenty-four (24) hours in advance of
the date the service is desired, and Tenant shall pay Landlord’s standard hourly charge (pro rated for partial hours)
for such extended HVAC service to the Premises (such standard hourly charge is currently $65.00 per
floor per hour, but is subject to change at any time during the Term).




          4.1.3. Chilled Water. In addition to the eighty (80) tons of existing supplemental
HVAC serving the Premises, Tenant shall have the right to connect to the chilled water system and
cooling tower and pumps for up to sixty (60) tons of chilled water for Tenant’s twenty-four (24)
hour per day supplemental HVAC use. Tenant shall be responsible for any and all costs (including
equipment)



32









 






associated with Tenant’s connection to Landlord’s chilled water system and the cooling
tower and pumps (and all such work shall be approved by Landlord in accordance with the terms of
this Lease). Tenant shall pay its share of utility costs associated with its use of the chilled
water system and cooling tower and pumps. Such costs shall be calculated by Landlord by
multiplying the total utility costs for the use of such chilled water system and cooling tower and
pumps for the Building by a fraction the numerator of which is the tonnage of Tenant’s supplemental
HVAC connected to the system and the denominator of which is five hundred (500) tons plus the
tonnage of Tenant’s supplemental HVAC connected to the system. Tenant shall pay such utility costs
to Landlord monthly, with Tenant’s payment of rent hereunder, based on an invoice received from
Landlord.




          4.1.4. Elevator Service. Passenger elevator service from the passenger elevator
system in common with Landlord and other tenants in the Building twenty-four hours a day, seven
days a week, three hundred sixty-five days a year.




          4.1.5. Loading Dock and Freight Elevator. The Building’s loading dock and freight
elevator service to all floors of the Premises shall be available at all times during regular
business hours on business days and on a scheduled basis during all other times.




     4.2. Cleaning/Refuse Removal Services. Landlord shall provide janitorial services
with respect to the Premises in accordance with the cleaning specifications attached hereto as
Appendix 4.2. Notwithstanding the foregoing, Landlord shall have no obligation to remove
or arrange for the removal of any refuse resulting from any Alterations by or on behalf of Tenant.
Tenant shall provide Landlord with access to the Premises so that Landlord can perform its
obligations under this Section 4.2.



     4.3. Access. Tenant shall have free access to the Premises twenty-four (24) hours per
day, three hundred sixty-five (365) days per year, subject to reasonable security procedures, in
all cases subject to restrictions based on emergency conditions; provided, however, that Tenant
shall be responsible for the security of its employees, contractors, representatives, and invitees.



     4.4. Maintenance and Repair of Common Areas. Subject to the provisions of Article 5
(Casualty and Condemnation), Landlord shall maintain the foundations, exterior walls, masonry,
structural floors, plate glass located in the Common Areas, skylights, exterior glass, exterior
windows, the roof, and all heating, ventilating and air conditioning systems serving the Building
as a whole (i.e., excluding supplementary Building systems either installed at a particular
tenant’s request or located within a tenant’s premises and which serve only a particular tenant’s
premises), in good working order and repair; but in no event shall Landlord be obligated to repair
or maintain interior glass, interior windows, or interior doors of the Premises, which shall be
Tenant’s responsibility, nor shall Landlord be obligated to repair or maintain any Alterations
installed by or on behalf of Tenant. Subject to the other provisions of this Lease, Landlord may
perform any maintenance or make any repairs to the Building as Landlord shall desire or deem
necessary for the safety, operation or preservation of the Building, or as Landlord may be required
or requested to do by any governmental authority or by the order or decree of any court or by any
other proper authority.



     4.5. Insurance. Landlord shall take out and maintain in force throughout the Term,
with a company or companies authorized to do business in the Commonwealth of Massachusetts (i)
property insurance on the Building in an amount equal to the full replacement cost of the Building
(exclusive of foundations), covering all risks of direct physical loss or damage and so-called
“extended coverage” risks, and which shall include a waiver of subrogation, and (ii) commercial
general liability insurance with respect to the Building in such amounts as Landlord may from time
to time deem necessary or desirable. Any insurance required to be maintained by Landlord hereunder
may be maintained in the form of a



33









 







blanket policy covering the Building as well as other properties
owned by Landlord or affiliates of Landlord so long as the blanket policy does not reduce the
limits or diminish the coverage required herein.



     4.6. Quiet Enjoyment. As long as no Default exists, Tenant shall peacefully and
quietly have and enjoy the Premises for the Term, free from interference by Landlord and anyone
claiming by, through or under Landlord, subject in all respects to the provisions of this Lease.



     4.7. No Liability for Interruptions. Except as hereinafter provided, Tenant shall not
be entitled to any abatement, diminution or reduction of Rent by reason of Landlord’s failure to
furnish any of the services referred to in this Article 4 or the Appendices referred to in Article
4 whether such failure is caused by Force Majeure (as hereinafter defined), accident, breakage,
repairs, riots, strikes, lockouts or other labor disturbance or labor dispute of any character,
governmental regulation, moratorium or other governmental action, inability by exercise of
reasonable diligence to obtain electricity, water or fuel, or by any other cause or for stoppages
or interruptions of any such services for the purpose of making necessary repairs or improvements.
Failure, disruption, stoppage or interruption, suspension or curtailment of any such service shall
not be construed as an actual or constructive eviction or as a partial eviction of Tenant, or
release Tenant from the prompt and punctual performance by Tenant of the covenants contained
herein.



     Further, anything herein to the contrary notwithstanding, Landlord and Tenant agree that
Landlord’s obligation, if any, to furnish heat, electricity, air conditioning, and/or water to the
Premises shall be subject to and limited by all Legal Requirements affecting the supply,
distribution, availability, conservation or consumption of energy, including, but not limited to,
heat, electricity, gas, oil and/or water. Tenant acknowledges that Landlord must abide by all such
Legal Requirements and, in so doing, Landlord shall not be in default in any manner whatsoever
under the terms of this Lease as a result thereof, and Landlord’s compliance therewith shall not
affect in any manner whatsoever Tenant’s obligation to pay the full Rent reserved in this Lease, as
and when payable pursuant to the terms and conditions of this Lease, or Tenant’s obligation to
perform any and all other obligations of Tenant under this Lease.



     Without limiting the foregoing, and notwithstanding anything in this Lease to the contrary, in
no event shall Landlord have any liability for, and in no event shall Tenant have the right to
claim damages, offset, diminution or a reduction or abatement of Rent, or that its possession or
enjoyment has been disturbed or that it has been constructively evicted, nor may Tenant terminate
this Lease, as a result of any diminution, reduction or loss of light, air, heat or view or as a
result of any noise, except has hereinafter provided. In the event any such interruption in
electrical or other utility service to the Premises (1) materially impairs Tenant’s use or
occupancy of or access to the Premises (or portion thereof) and Tenant does not use the Premises
(or portion thereof) for the conduct of its business as a result thereof, (2) is caused by the
negligence or willful misconduct of Landlord and not as a result of any act or omission of Tenant
or any other party or the utility company providing such service, and (3) continues for three (3)
consecutive business days (a “Material Interruption”), then the Rent shall abate in
proportion that the rentable area of the affected portion of the Premises so impaired and not used
by Tenant bears to the rentable area of the Premises until such service is restored, except that if
the Material Interruption is caused by a casualty or condemnation, then the abatement provided
under this Section will not be applicable and the rights and remedies of the parties will be governed by the applicable
provisions of Article 5 of this Lease.



     4.8. Costs and Expenses of Services. Except as otherwise provided in this Lease, and
except for the costs and expenses associated with furnishing electricity to the Premises (for which
Tenant will be charged in accordance with Section 2.2.3), the costs and expenses incurred by
Landlord in connection with furnishing the services referred to in this Article 4 and the
Appendices referred to herein, shall be included as part of Operating Expenses.



34









 





ARTICLE 5. CASUALTY AND CONDEMNATION




     5.1. Casualty.



          5.1.1. Option to Terminate and Not to Restore. Notwithstanding any provisions of this
Lease to the contrary, if there is substantial damage to the Building or the Premises due to a fire
or other casualty such that the Building or Premises could not, in the reasonable estimation of an
engineer selected by Landlord and reasonably approved by Tenant, be repaired within one (1) year of
the date of such estimate (which estimate is to be provided to Tenant within forty-five (45) days
of such casualty), then either party shall have the right to terminate this Lease by delivering
written notice of such termination to the other, within sixty days (60) of such fire or other
casualty, the notice to specify a termination date not less than thirty (30) days after its
transmission.




          5.1.2. Application of Insurance Proceeds. If Landlord or Tenant does not terminate
this Lease pursuant to Section 5.1.1 or Section 5.1.4 hereof, the net amount of any insurance
proceeds (excluding proceeds received pursuant to any rental interruption coverage obtained by
Landlord) actually recovered by Landlord by reason of the damage or destruction of the Building or
Premises in excess of the cost of adjusting the insurance claim and collecting the insurance
proceeds (such excess amount being hereinafter called the “net insurance proceeds”), plus
the deductible amount, shall be applied towards the cost of the work required to be performed by
Landlord under Section 5.1.3. If the net insurance proceeds are more than adequate to complete
such work, the amount by which the net insurance proceeds exceed the cost of such work shall be
retained by Landlord. In no event shall Landlord be obligated to expend any amount in excess of
the net insurance proceeds actually recovered to repair or restore the Building or Premises as a
result of a fire or other casualty, plus the deductible amount.




          5.1.3. Landlord’s Work. If the Premises or the Building shall be damaged or destroyed
by fire or other casualty, Tenant shall promptly notify Landlord of any damage or destruction to
the Premises and/or Building of which Tenant has knowledge or is aware, and, unless Landlord or
Tenant has terminated this Lease pursuant to Section 5.1.1 or Section 5.1.4, Landlord, subject to
the conditions set forth in this Section 5.1.3, shall repair, rebuild or replace such damage and
restore the Premises and/or the Building as the case may be, to substantially the same condition in
which they were immediately prior to such damage or destruction. Landlord shall exercise
commercially reasonable efforts to commence the repair and restoration work required by this
Section 5.1.3 promptly after receiving the insurance proceeds from the insurer, and to work
diligently to complete such work, taking into account delays beyond Landlord’s reasonable control.
If, however, the Premises is not substantially repaired by the date that is one (1) year following
Landlord’s receipt of such insurance proceeds, Tenant may, by written notice to Landlord, terminate
the Lease, in which case the Lease shall terminate thirty (30) days after Landlord’s receipt of
such notice, unless prior to such thirtieth day, the repair of the Premises is substantially
completed. Tenant shall, at its sole cost and expense, remove so much of its furniture and
furnishings and other belongings from the Premises as Landlord shall reasonably require in order to
perform the work required to be performed by Landlord under this Section 5.1.3.




          5.1.4. Mutual Right to Terminate. Notwithstanding anything herein to the contrary, if
the Premises is substantially damaged by a fire or other casualty during the last six (6) months of
the Lease Term (and Tenant has not theretofore exercised its extension option), such that Tenant is
precluded from occupying the Premises for a period in excess of thirty (30) days, Landlord and
Tenant shall each have the right to terminate this Lease by giving the other notice within thirty
(30) days of such fire or casualty, with notice shall be effective as of the date of the casualty.




          5.1.5. Repair and Restoration of Tenant’s Personal Property, Tenant’s Work and any Tenant
Alterations. Landlord’s obligation to restore the Premises under Section 5.1.3 shall not
include



35









 






the repair, restoration or replacement of the furniture, fixtures or any other personal
property owned by or in the possession of Tenant. In addition, Landlord shall not be under any
obligation to repair, restore or replace any alterations or improvements to the Premises made by
Tenant after the Lease Commencement Date; provided, however, if Tenant tenders its insurance
proceeds to Landlord, Landlord shall restore such improvements made by Tenant up to the amount of
such insurance proceeds.




          5.1.6. Rent Abatement. Tenant will receive an equitable abatement of Rent to the
extent and during the time the Premises are rendered untenantable due to a fire or other casualty.
Any abatement of Rent shall be in such proportion as the part of the Premises thus destroyed or
rendered untenantable bears to the total Premises from the date of such damage or destruction and
until the earlier of the date that (i) Landlord substantially completes the work upon the Premises
required to be performed by Landlord hereunder, or (ii) Tenant recommences use of such part of the
Premises for the conduct of its business.




     5.2. Condemnation. If the Premises or the Building is rendered untenantable by reason
of a condemnation (or by a deed given in lieu thereof), then either party may terminate this Lease
by giving written notice of termination to the other party within thirty (30) days after such
condemnation, in which event this Lease shall terminate effective as of the date of such
condemnation. If this Lease so terminates, Rent shall be paid through and apportioned as of the
date of such condemnation. Except as otherwise set forth herein, if such condemnation does not
render the Premises or the Building untenantable, this Lease shall continue in effect and Landlord
shall promptly restore the portion not condemned to the extent reasonably possible to the condition
existing prior to the condemnation. In such event, Landlord shall not be required to expend an
amount in excess of the proceeds received by Landlord from the condemning authority, plus any net
insurance proceeds and the deductible amount.


If only a part of the Premises shall be acquired or condemned by eminent domain, then, except as
otherwise provided in this Section, this Lease shall continue in force and effect, but from and
after the date of the vesting of title, the Monthly Base Rent shall be an amount which bears the
same ratio to the Monthly Base Rent payable immediately prior to such condemnation as the value of
the untaken portion of the Premises (appraised after the taking and repair of any damage to the
Building pursuant to this Section) bears to the value of the entire Premises immediately before the
taking and any Additional Rent payable shall be adjusted to reflect the diminution of the Premises.
Such value of the Premises before and after the taking shall be determined by an independent
appraiser chosen by Landlord and reasonably approved by Tenant. Pending such determination, Tenant
shall pay to Landlord rent as fixed by Landlord, subject to adjustment after such determination.
If only a part of the Property shall be so acquired or condemned, then (a) whether or not the
Premises shall be affected, but provided that such taking affects a material portion of the
Building and/or the Parking Lot, Landlord may, within sixty (60) days following the date of vesting
of title, give Tenant thirty (30) days’ notice of termination of this Lease, or (b) if more than
twenty percent (20%) of the total area of the then Premises, or more than twenty-five percent (25%)
of the parking spaces available in the Parking Lot, is/are acquired or condemned, Tenant may,
within sixty (60) days following the date upon which Tenant shall have received notice of vesting
of title, give to Landlord thirty (30) days’ notice of termination of this Lease. In the
event any such thirty (30) day notice of termination is given by Landlord or Tenant, this Lease
shall terminate upon the expiration of said thirty (30) days with the same effect as if that date
were the Expiration Date, without prejudice to Landlord’s rights against Tenant under this Lease in
effect prior to such termination; and the rental shall be apportioned as of such date or sooner
termination.




          5.2.1. Application of Condemnation Award. Landlord reserves all rights, and Tenant
hereby assigns to Landlord all of Tenant’s rights, if any, in and to compensation for any
condemnation (except for any awards payable directly to Tenant for moving and relocation expenses
or for Tenant’s furnishings, trade fixtures and equipment which are not part of the Premises or for
the unamortized cost to



36









 






Tenant of any additions, alterations or improvements to the Premises made
by Tenant provided such awards do not reduce any award to Landlord), and Tenant shall make no claim
against Landlord or the condemning authority for compensation (except as provided in the
immediately preceding sentence) for termination of Tenant’s leasehold interest under this Lease or
interference with Tenant’s business.




ARTICLE 6. DEFAULT




     6.1. Events of Default. The occurrence of any of the following shall constitute an
event of default (a “Default”) by Tenant under this Lease:



               i. Tenant fails to pay any Rent when due and such failure to pay is not cured within five (5)
days after written notice from Landlord, provided, however, a Default shall occur without any
obligation of Landlord to give any written notice if Tenant fails to pay any regularly scheduled
payment of Rent within five (5) days from the date due, and Landlord has given Tenant written
notice under this Section 6.1(i) on two (2) occasions during the three hundred sixty-five (365) day
interval preceding such failure to pay by Tenant;



               ii. Tenant violates Section 3.8 (Assignment and Sublet);



               iii. the leasehold interest of Tenant is levied upon or attached under process of law and such
levy or attachment is not removed or dissolved within thirty (30) days;



               iv. (a) if a receiver or custodian is appointed for any or all of Tenant’s property or assets
and such receiver or custodian is not dismissed within sixty (60) days of such appointment; or (b)
if Tenant files a voluntary petition under 11 U.S.C. Article 101 et seq., as amended (the
“Bankruptcy Code”), or under the insolvency laws of any jurisdiction (the “Insolvency Laws”); or
(c) if there is filed an involuntary petition against Tenant as the subject debtor under the
Bankruptcy Code or Insolvency Laws, which is not dismissed within sixty (60) days of filing; or (d)
if Tenant makes or consents to an assignment of its assets, in whole or in part, for the benefit of
creditors, or a common law composition of creditors; or



               v. Tenant fails to perform or observe any other covenant or obligation of Tenant set forth in
this Lease and such failure is not cured within thirty (30) days (or promptly and in any event
within three (3) business days (or such longer time as hereinafter provided) after written notice
from Landlord if the failure involves an imminent risk of harm to any person or property, or
illegal conduct) after written notice from Landlord, or if such failure is not reasonably curable
within such thirty (30) day period, such longer period of time as may be reasonably necessary to
effect such cure, so long as Tenant prosecutes such cure to completion with reasonable diligence.



     6.2. Remedies for Default.



          6.2.1. Entry/Termination. Upon the occurrence of a Default, Landlord may elect to
terminate this Lease, or, without terminating this Lease, terminate Tenant’s right to possession of
the Premises and in either case by written notice thereof to Tenant. Upon any such termination,
Tenant shall immediately surrender and vacate the Premises and deliver possession thereof to
Landlord.




          6.2.2. Releasing. If Landlord terminates Tenant’s right to possession of the Premises
without terminating this Lease, Landlord may relet the Premises or any part thereof. In such case,
Landlord shall use reasonable efforts to relet the Premises on such terms as Landlord shall
reasonably deem appropriate; provided, however, Landlord may first lease Landlord’s other available
space and shall not be required to accept any tenant offered by Tenant or to observe any
instructions given by Tenant



37









 






about such reletting. Tenant shall reimburse Landlord for all
reasonable costs and expenses of reletting the Premises including, but not limited to, all
brokerage, advertising, legal, alteration and other expenses incurred to secure a new tenant for
the Premises, and tenant inducements. In addition, if the consideration collected by Landlord upon
any such reletting, after payment of the expenses of reletting the Premises which have not been
reimbursed by Tenant, is insufficient to pay monthly the full amount of the Rent, Tenant shall pay
to Landlord the amount of each monthly deficiency as it becomes due. If such consideration is
greater than the amount necessary to pay the full amount of the Rent, the full amount of such
excess shall be retained by Landlord and shall in no event be payable to Tenant.




          6.2.3. Damages. If Landlord terminates this Lease pursuant to the terms and
provisions of this Section 6.2, Landlord may recover from Tenant, and Tenant shall pay to Landlord,
on demand, the Rent and other charges payable by Tenant to Landlord through the date of
termination, and, in addition, shall pay to Landlord as damages, at the election of Landlord,
either: (x) an accelerated lump sum amount equal to the present value of the amount by which the
aggregate amount of Rent owing from the date of such termination through the Expiration Date
exceeds the fair rental value of the Premises for the same period; or (y) amounts equal to the Rent
which would have been payable by Tenant had this Lease not been so terminated, payable upon the due
dates therefor specified herein following such termination and until the Expiration Date; provided,
however, if Landlord shall re-let the Premises during such period, that Landlord shall credit
Tenant with the net rents received by Landlord from such re-letting, such net rents to be
determined by first deducting from the gross rents as and when received by Landlord from such
re-letting, the expenses incurred or paid by Landlord in terminating this Lease, as well as the
expenses of re-letting, including altering and preparing the Premises for new tenants,
administrative costs, advertising costs, brokerage commissions, and all other similar and
dissimilar expenses properly chargeable against the Premises and the rental therefrom, it being
understood that any such re-letting may be for a period equal to or shorter or longer than the
remaining Term of this Lease; and provided, further, that (i) in no event shall Tenant be entitled
to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder and
(ii) in no event shall Tenant be entitled in any suit for the collection of damages pursuant to
this subparagraph or to a credit in respect of any net rents from a re-letting except to the extent
that such net rents are actually received by Landlord prior to the completion of such suit. If the
Premises or any part thereof shall be re-let in combination with other space, a proper
apportionment on a square foot area basis shall be made of the rent received from re-letting and
other expenses of such re-letting.




     Suit or suits for the recovery of such damages, or any installments thereof, may be brought by
Landlord from time to time at its election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the date when the Term of this Lease would have expired if it had
not been terminated hereunder.



          6.2.4. Landlord’s Right to Cure. Landlord may, but shall not be obligated, to perform
any obligation of Tenant under this Lease after the occurrence of a Default; and, if Landlord so
elects, all costs and expenses paid by Landlord in performing such obligation, together with
interest at the Default Rate, shall be reimbursed by Tenant to Landlord on demand.




          6.2.5. Cumulative Remedies. Any and all remedies set forth in this Lease: (i) shall
be in addition to any and all other remedies Landlord may have at law and/or in equity, (ii) shall
be cumulative, and (iii) may be pursued successively or concurrently as Landlord may elect. The
exercise of any remedy by Landlord shall not be deemed an election of remedies or preclude Landlord
from exercising any other remedies in the future.




          6.2.6. No Waiver. No receipt of money by Landlord from Tenant after termination of
this Lease or after the service of any notice or after the commencing of any suit or after final
judgment for possession of the Premises shall renew, reinstate, continue or extend the Term or
affect any such notice or



38









 






suit. No waiver of any default of Tenant shall be implied from any
omission by Landlord to take any action on account of such default if such default persists or be
repeated, and no express waiver shall affect any default other than the default specified in the
express waiver and then only for the time and to the extent therein stated. No consent or waiver,
by Landlord to or of any breach of any agreement or duty shall be construed as a waiver or consent
to or of any other breach of the same or any other agreement or duty.




          6.2.7. Agreements Applicable to Tenant’s Bankruptcy. Notwithstanding anything to the
contrary contained herein, and without prejudice to Landlord’s right to require a written
assumption from each assignee, any person or entity to whom this Lease is assigned including,
without limitation, assignees pursuant to the provisions of the Bankruptcy Code, shall
automatically be deemed, by acceptance of such assignment or sublease or by taking actual or
constructive possession of the Premises, to have assumed all obligations of Tenant arising under
this Lease effective as of the earlier of the date of such assignment or sublease or the date on
which the assignee or sublessee obtains possession of the Premises. In the event this Lease is
assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, any and all
monies or other consideration payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord or shall remain the exclusive property of
Landlord and not constitute the property of Tenant or Tenant’s estate within the meaning of the
Bankruptcy Code. In the event of any Default described in Section 6.1.iv, in order to provide
Landlord with the assurances contemplated by the Bankruptcy Code, in connection with any assignment
and assumption of this Lease, Tenant must fulfill the following obligations, in addition to any
other reasonable obligations that Landlord may require, before any assumption of the Lease is
effective: (i) all defaults under Section 6.1.i of this Lease must be cured within ten (10) days
after the date of assumption; (ii) all other defaults under Section 6.1 of this Lease other than
under subsection 6.1.vi must be cured, if cure is possible, and in any event Landlord shall be
adequately compensated for such default, all within fifteen (15) days after the date of assumption;
(iii) all actual monetary losses incurred by Landlord (including, but not limited to, reasonable
attorneys’ fees) must be paid to Landlord within ten (10) days after the date of assumption; and
(iv) Landlord must receive within ten (10) days after the date of assumption a security deposit in
the form or a letter of credit in an amount equal to six (6) months of Monthly Base Rent (using the
Monthly Base Rent in effect for the first full month immediately following the assumption) and an
advance prepayment of Monthly Base Rent in the amount of three (3) months Monthly Base Rent (using
the Monthly Base Rent in effect for the first full month immediately following the assumption),
both sums to be held by Landlord in accordance with this Lease and deemed to be Rent under this
Lease for the purposes of the Bankruptcy Code, as amended and from time to time in effect. In the
event this Lease is assumed in accordance with the requirements of the Bankruptcy Code and this
Lease, and is subsequently assigned, then, in addition to any other reasonable obligations that
Landlord may require and in order to provide Landlord with the assurances contemplated by the
Bankruptcy Code, Landlord shall be provided with (i) a financial statement of the proposed assignee
prepared in accordance with generally accepted accounting principles consistently applied, on a
cash basis, which reveals a net worth in an amount sufficient, in Landlord’s reasonable judgment,
to assure the future performance by the proposed assignee of Tenant’s obligations under this Lease;
or (ii) a written guaranty by one or more guarantors with financial ability sufficient to assure
the future performance of Tenant’s obligations under
this Lease, such guaranty to be in form and content satisfactory to Landlord and to cover the
performance of all of Tenant’s obligations under this Lease.




     6.3. Landlord Default. Landlord shall not be liable for any failure to make repairs
which Landlord has undertaken to make under the provisions of this Lease unless Tenant has given
notice to Landlord of the need to make such repairs, and Landlord has failed to complete such
repairs within thirty (30) days after receipt of such notice, or if the nature of such repair would
reasonably require more than thirty (30) days to complete, if Landlord has failed to commence
performance of such repair within such thirty (30) day period or has failed to proceed with
reasonable diligence to complete such repairs if



39









 







any repairs are, in fact, necessary.
Notwithstanding the foregoing, if any condition in the Building or Premises constitutes an imminent
threat to person or property and is the Landlord’s responsibility, Landlord shall remedy such
condition or cause such condition to be remedied promptly after receipt of notice thereof (whether
or not from Tenant), and in the event Landlord fails to commence such repair within seventy-two
hours of Tenant’s notice, Tenant may elect to take action hereunder immediately thereafter with
simultaneous notice to Landlord of Tenant’s action and if Tenant reasonably believes an emergency
to exist, Tenant shall endeavor to give Landlord advance notice, but if such notice is not
reasonable under the circumstances, shall give notice to Landlord as soon as practicable
thereafter. Landlord shall reimburse Tenant for all actual out-of-pocket costs reasonably incurred
in connection with such repairs completed by Tenant hereunder (the “Repair Reimbursement”) within
thirty (30) days after submission by Tenant to Landlord of a statement of such costs together with
invoices and other reasonable supporting documentation. If Landlord shall fail to make timely
payment of such amounts, Tenant shall provide a second notice to Landlord, and if Landlord fails to
make such payment within fifteen (15) days after such second request, Tenant may deduct such
amounts from the Monthly Base Rent next due and owing under this Lease; provided that (i) in the
event Landlord disputes any amounts claimed by Tenant, Tenant shall not be entitled to deduct the
disputed amounts (but may deduct amounts not in dispute) until the dispute is resolved, and (ii)
Tenant may not deduct more than ten percent (10%) of the Monthly Base Rent during any month;
provided further that Tenant shall be entitled to interest, calculated at the Default Rate, from
the date that is thirty (30) days after such costs are incurred, until the date that Tenant is
reimbursed (either directly or by an offset to Monthly Base Rent) on any amounts not paid timely by
Landlord to Tenant under this Section 6.3. In the event that Tenant and Landlord do not agree on
the Repair Reimbursement, Landlord and Tenant shall, for a period of thirty (30) days from the date
that Landlord notifies Tenant that it disputes the Repair Reimbursement, negotiate in good faith to
resolve such disagreement. If, however, after such thirty (30) days period, Landlord and Tenant
have not resolved such matter, either party may apply to the American Arbitration Association, or
any successor thereto, in order to resolve such dispute by arbitration.



ARTICLE 7. PROTECTION OF LENDERS




     7.1. Subordination and Attornment. This Lease shall be automatically subordinated to
any existing Mortgage encumbering the Property, provided, however, as a condition precedent to such
subordination, Landlord shall provide to Tenant a subordination, non-disturbance and attornment
agreement, in a commercially reasonable form, and which provides that the ground lessor, mortgagor
or beneficiary of such Mortgage agrees that in the event of the foreclosure or termination of such
Mortgage, this Lease and the rights of Tenant hereunder will continue in full force and effect so
long as Tenant is not in default beyond any applicable grace or cure periods (“SNDA”).
“Mortgage” includes any mortgage, deed of trust or ground lease, together with any
amendments, additional advances, restatements, modifications or consolidations of such instrument.
If any ground lessor, beneficiary or mortgagee elects to have this Lease prior to the lien of its
Mortgage and gives written notice thereof to Tenant, this Lease will be deemed prior to such
Mortgage whether this Lease is dated prior or subsequent to the date of said Mortgage or the date
of recording thereof. Simultaneously with Landlord’s execution and delivery of this
Lease to Tenant, Landlord shall provide Tenant with a SNDA executed by Landlord’s current
Mortgagee in the form attached hereto as Appendix 7.1.



     7.2. Estoppel Certificates. Each of Tenant and Landlord agrees periodically to
furnish within ten (10) business days after so requested by the other or the holder of any Mortgage
a certificate signed by the non-requesting party certifying such customary factual matters with
respect to this Lease and Tenant’s occupancy of the Premises as may be reasonably required by the
requesting party or such holder. Any such certificate may be relied upon by any ground lessor,
prospective purchaser, secured party, or mortgagee of the Building, the Land, the Premises or any
part thereof or interest of Landlord or Tenant therein.



40









 





ARTICLE 8. GENERAL PROVISIONS




     8.1. Tenant’s Organization, Authority. In the event Tenant is a corporation
(including any form of professional association), partnership (general or limited), or other form
of organization other than an individual (each such entity is individually referred to herein as an
“Organizational Entity”), then Tenant hereby covenants, warrants and represents: (1) that
the individual executing this Lease is duly authorized to execute and/or attest and deliver this
Lease on behalf of Tenant in accordance with the organizational documents of Tenant, (2) that this
Lease is binding upon Tenant, (3) that Tenant is duly organized and legally existing in the state
of its organization, and is qualified to do business in the state in which the Premises is located,
and (4) that the execution and delivery of this Lease by Tenant will not result in any breach of,
or constitute a default under any mortgage, deed of trust, lease, loan, credit agreement,
partnership agreement or other contract or instrument to which Tenant is a party or by which Tenant
may be bound.



     8.2. Brokers. Each of Landlord and Tenant represents and warrants that the other that
it has dealt only with the brokers named in the Schedule of Incorporated Terms (the
“Broker”) in connection with this Lease and that, to the best of its knowledge, no other
broker negotiated this Lease or is entitled to any commission in connection herewith. Each of
Landlord and Tenant agrees to indemnify, defend and hold the other harmless from and against any
claims for a fee or commission made by any broker, other than the Broker.



     8.3. Tender of Lease Not an Offer to Lease; Execution and Delivery. Submission of
this instrument for examination or signature by Tenant does not constitute a reservation of space
or an option for lease, and it is not effective until execution and delivery by both Landlord and
Tenant.



     8.4. Force Majeure. Neither party shall be in default hereunder for failing to
perform any of its obligations hereunder (other than the payment of any Rent or other sum) if the
claiming party is prevented from performing any of its obligations hereunder due to acts of God,
imminent occurrences of acts of God, strikes, sabotage, accidents, acts of war or terror, fire and
casualty, legal requirements (to the extent they are not customary or require a longer than usual
time period in which to comply), government restrictions or controls on construction (to the extent
such restrictions or controls are not customary or require a longer than usual time period in which
to comply), insurance reimbursement problems or delays, emergencies, shortages or inability to
obtain labor, materials or equipment, energy shortage, or any other causes (other than the
inability to obtain financing) beyond the reasonable control of the party claiming the force
majeure event (“Force Majeure”). In no event shall Tenant be entitled to claim any Force Majeure
event for its failure to pay Rent or other sums under this Lease or the start of the commencement
of the Term of the Lease for any portion of the Premises or any additional space to be leased by
Tenant under this Lease. Notwithstanding the foregoing, the time periods and dates applicable to
(i) Landlord’s restoration obligations after an event of fire or other casualty or taking set forth
in Article V, and (ii) Landlord’s delivery of the Premises in Section 1.4.3 (and including the
dates by which certain penalties
and other rights of Tenant, as specified in said Section 1.4.3, commence) shall not, after
extension on account of any Tenant Delays, in either case, be extended for more than an additional
sixty (60) days on account of any Force Majeure event.



     8.5. No Surrender. Neither the delivery of keys to any employee of Landlord or to
Landlord’s agent or any employee thereof, nor the termination or expiration of any sublease or
assignment or all or any portion of the Premises, nor the abandonment or the Premises shall operate
as a termination of this Lease or an acceptance of surrender of the Premises, absent the explicit
written agreement of the Landlord to same.



41









 





     8.6. Joint and Several Liability. If Tenant is comprised of more than one party, each
such party shall be jointly and severally liable for Tenant’s obligations under this Lease.



     8.7. Legal Costs and Expenses; Prevailing Party. Tenant shall pay to Landlord all
costs and expenses, including reasonable attorney’s fees, incurred by Landlord in connection with a
default by Tenant hereunder or in enforcing this Lease. Notwithstanding the foregoing, the
prevailing party in any litigation shall be entitled to its attorney’s fees and court costs.



     8.8. Limitation of Landlord’s Liability. Notwithstanding anything to the contrary in
this Lease, the liability of Landlord (and of any successor Landlord) shall be limited to the
interest of Landlord in the Property and the proceeds thereof, and Tenant shall look solely to
Landlord’s interest in the Property and the proceeds thereof for the recovery of any judgment or
aware against Landlord. Landlord shall have the right in its sole and unrestrained discretion, to
transfer and assign, in whole or in part, all of its rights and obligations in and to this Lease
and/or the Building or Property. The word “Landlord” is used in this Lease to include the
Landlord named above as well as its successors and assigns, each of whom shall have the same
rights, remedies, powers, authorities and privileges as it would have had it originally signed this
Lease as Landlord. Any such person, whether or not named herein, shall have no liability hereunder
after it ceases to hold title to the Premises except for obligations which may have theretofore
accrued. Neither Landlord nor any principal, member, officer, employee or partner of Landlord nor
any owner of the Property, whether disclosed or undisclosed, shall have any personal liability with
respect to any of the provisions of this Lease or the Premises, and neither Landlord, nor any
parent or affiliate company, nor any principal, employee, officer, member, or partner of Landlord
shall have any personal liability to Tenant for any liability of or claim against Landlord under
this Lease beyond the equity of the Landlord in the Building and the Land. In no event shall
Landlord be liable to Tenant for any lost profit, damage to or loss of business or any form of
special, indirect or consequential damage.



     8.9. Limitation of Tenant’s Liability. No principal, member, officer, employee or
partner of Tenant, whether disclosed or undisclosed, shall have any personal liability with respect
to any of the provisions of this Lease or the Premises. Except as otherwise set forth in Section
2.5 hereof, Tenant shall not be liable to Landlord for any lost profit, damage to or loss of
business or any form of special, indirect or consequential damage.



     8.10. No Recording of Lease. Tenant shall not record this Lease; however, the parties
shall record a notice or memorandum hereof in statutory form.



     8.11. Notices. All notices and demands to be given by one party to the other party
under this Lease shall be given in writing, mailed or delivered to Landlord or Tenant, as the case
may be, at the address of each party set forth in the Schedule or at such other address as either
party may hereafter designate. Notices shall be delivered by hand or by United States certified or
registered mail, postage prepaid, return receipt requested, or by a nationally recognized overnight
air courier service. Notices shall
be considered to have been given upon the earlier to occur of actual receipt or refusal to
accept delivery thereof.



     8.12. Tenant’s Financing. Notwithstanding anything to the contrary contained in this
Lease, Tenant shall have the right to grant a lien and security interest in all of its assets
(including, without limitation, its personal property, equipment and fixtures situated at the
Premises) to secure financing for itself and its affiliates without the consent of Landlord. To
accommodate such financing, Landlord agrees to waive any statutory landlord’s lien on Tenant’s
assets and permit Tenant’s lender, pursuant to a commercially reasonable agreement between Landlord
and Tenant’s lender, during the existence of any default under such financing, to access the
Premises for the purpose of taking possession of and selling such assets, to the extent permitted
under the agreements evidencing and securing such financing.



42









 







Landlord further agrees to promptly
execute and deliver to Tenant and its lender any commercially reasonable documentation reasonably
requested by Tenant or its lender and approved by Landlord to memorialize the foregoing, provided
that Tenant shall reimburse Landlord for all reasonable costs incurred by Landlord in reviewing any
request by Tenant or its lender, including, including, but not limited to, reasonable attorney’s
fees (which costs and fees shall be capped at $500 in each instance).



     8.13. Waiver of Subrogation. Landlord and Tenant agree that in the event the
Building, the Premises or the contents thereof are damaged or destroyed by fire or other casualty,
the rights, if any, of either party against the other with respect to such damage or destruction
are waived to the extent such damage or destruction is covered under the insurance policies of
Landlord or Tenant. All policies of insurance covering the Building, the Premises or the contents
thereof obtained by Landlord or Tenant shall contain a clause or endorsement providing in substance
that (i) such insurance shall not be prejudiced if the insureds thereunder have waived in whole or
in part the right of recovery from any person or persons prior to the date and time of loss or
damage, if any, and (ii) the insurer waives any rights of subrogation against Landlord (in the case
of Tenant’s insurance policy) or Tenant (in the case of Landlord’s insurance policy), as the case
may be.



     8.14. Miscellaneous.



          8.14.1. Entire Agreement. This Lease, and the Appendices attached hereto which are
hereby made a part of this Lease, represent the complete agreement between Landlord and Tenant, and
Landlord has made no representations or warranties except as expressly set forth in this Lease. No
modification or amendment of or waiver under this Lease shall be binding upon Landlord or Tenant
unless in writing signed by Landlord and Tenant.




          8.14.2. Governing Law; Severability; Rules of Construction. This Lease shall be
governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. If any
term, covenant, condition or provision of this Lease or the application thereof to any person or
circumstances shall be declared invalid or unenforceable by the final ruling of a court of
competent jurisdiction having final review, the remaining terms, covenants, conditions and
provisions of this Lease and their application to persons or circumstances shall not be affected
thereby and shall continue to be enforced and recognized as valid agreements of the parties, and in
the place of such invalid or unenforceable provision, there shall be substituted a like, but valid
and enforceable provision which comports to the findings of the aforesaid court and most nearly
accomplishes the original intention of the parties. The titles of the several Articles and
Sections contained herein are for convenience only and shall not be considered in construing this
Lease. Each and every covenant of Tenant in this Lease shall be both a covenant and a condition to
the performance of Landlord’s obligations hereunder. No covenant of Landlord in this Lease shall
be a condition to the performance of Tenant’s obligations hereunder. The obligations and covenants
of Tenant under this Lease shall be independent of Landlord’s obligations under this Lease, and no
failure of Landlord to perform its obligations under this Lease shall relieve
Tenant from performing its obligations or covenants under this Lease or permit Tenant to
terminate, or be deemed a termination of, this Lease.




          8.14.3. Binding Effect; Successors and Assigns; No Third Party Beneficiaries. Subject
to Section 3.8 of this Lease, each provision of this Lease shall extend to, bind and inure to the
benefit of Landlord and Tenant and their respective legal representatives, successors and assigns;
and all references herein to Landlord and Tenant shall be deemed to include all such parties. The
provisions of this Lease shall not inure to the benefit of or be relied upon by any other parties.




43









 








          8.14.4. Survival. All representations and warranties of Landlord and Tenant,
Landlord’s and Tenant’s indemnities, hold harmless and defense obligations and Tenant’s obligations
to pay Additional Rent shall survive the expiration or earlier termination of this Lease.




          8.14.5. Time is of the Essence. Time is of the essence of this Lease and each and all
of its provisions.




          8.14.6. Waiver of Jury Trial; Consent by Tenant to Jurisdiction and Venue. Landlord
and Tenant waive trial by jury in the event of any action, proceeding or counterclaim brought by
either Landlord or Tenant against the other in connection with this Lease. Each of Landlord and
Tenant consents to the exercise of personal jurisdiction over it by the courts of the Commonwealth
of Massachusetts, including any Federal court sitting in such jurisdiction, and agrees that venue
shall be proper in Middlesex County or in the United States District Court for the District of
Massachusetts, in addition to any other court where venue may be proper.




[SIGNATURES ON FOLLOWING PAGE]




44









 








     Executed as of the date first above written by Landlord and Tenant.



LANDLORD:




MSCP CROSBY, LLC, a Delaware limited liability company




	 	 	 	 	 	 	 
	By:	 	Divco West Real Estate Services, Inc., its agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ James Teng
 

Name: James Teng
	 	 
	 

	 	 	 	Title: Managing Director	 	 






TENANT:




ACME PACKET, INC., a Delaware corporation




	 	 	 	 	 
	By:

	 	/s/ Andrew D. Ory
 

Name: Andrew D. Ory
	 	 
	 

	 	Title: Chief Executive Officer	 	 







 











 





APPENDIX 1.1A




PLAN OF PREMISES









-A-1-









 










-A-2-









 










-A-3-









 










-A-4-









 






APPENDIX 1.1B




LEGAL DESCRIPTION


Description of Land


A certain
parcel of land, with the buildings and improvements thereon, located at 100 Crosby Drive
in the Town of Bedford, Middlesex County, Massachusetts, shown on a plan entitled “Compiled Plan of
Land Bedford, Mass,” dated May 29, 1980, with Conservation
Restriction Area added June 19, 1980,
prepared by Schofield Brothers, Inc., recorded with the Middlesex South Registry of Deeds as Plan
No. 1575 of 1980, Book 14163, Page 363 (the “Plan”), bounded and described according to the Plan as
follows:



Beginning at the Southeast corner at a point on the Westerly sideline of Crosby Drive and land now
or formerly of Linsey; thence




	 	 	 
	S 88° 20’ 10” W

	 	Three Hundred Fifty-Five (355) feet to a point; thence
	 
	 	 
	N 01° 39’ 50” W

	 	One Hundred Four and 35/100 (104.35) feet to a point; thence
	 
	 	 
	S 88° 20’ 10” W

	 	Two Hundred Eight and 71/100 (208.71) feet to a point; thence
	 
	 	 
	S 01° 39’ 50” E

	 	One Hundred Four and 35/100 (104.35) feet to a point; thence
	 
	 	 
	S 88° 20’ 10” W

	 	Three Hundred Sixty-Four and 69/100
(364.69) feet to a drill hole at the
end of a stone wall; thence
	 
	 	 
	S 66° 44’ 20” W

	 	Two Hundred Forty-Six and 38/100 (246.38) feet by a stone wall to a drill
hole in the wall; thence
	 
	 	 
	S 66° 44’ 20” W

	 	One Hundred Ninety (190) feet to the thread of the Shawsheen River;
thence
	 
	 	 
	Northerly and
Northeasterly

	 	Four Thousand, Five Hundred Sixty-Five (4,565) feet plus or minus by the
thread of the Shawsheen River to a point at the Southerly sideline of
Middlesex Turnpike; thence
	 
	 	 
	S 42° 46’ 10” E

	 	Four Hundred Twenty (420) feet more or less to a stone bound; thence
	 
	 	 
	S 42° 46’ 10” E

	 	Five Hundred Eighteen and 12/100 (518.12) feet to a point; thence
	 
	 	 
	S 41° 47’ 40” E

	 	Two Hundred Forty-Two and 83/100
(242.83) feet to the Westerly
sideline of Crosby Drive; the last three (3) courses being by the Southerly sideline of the
Middlesex Turnpike; thence
	 
	 	 
	S 26° 18’ 00” W

	 	Two Hundred Sixty-Five and 38/100 (265.38) feet to a point; thence






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	S 34° 19’ 00” W

	 	Five Hundred Seventeen and 4/10
(517.4) feet to a point; thence
	 
	 	 
	S 54° 26’ 10” W

	 	One Hundred Sixty-Six and 92/100 (166.92) feet to a point; thence
	 
	 	 
	S 49° 39’ 00” W

	 	One Hundred Thirty-Three and 97/100
(133.97) feet to a point; thence
	 
	 	 
	S 19° 51’ 10” W

	 	Sixty-Nine and 65/100 (69.65) feet to a point; thence
	 
	 	 
	S 61° 11’ 00” W

	 	Fifty-Eight and 7/10 (58.7) feet to
a point; thence
	 
	 	 
	S 41° 37’ 40” E

	 	Forty-Four and 12/100 (44.12) feet to a point; thence
	 
	 	 
	S 19° 51’ 10” W

	 	One Hundred Nineteen and 7/10 (119.7) feet to a point; thence
	 
	 	 
	S 00° 27’ 40” W

	 	Eighty-Eight and 32/100 (88.32) feet to a point; thence
	 
	 	 
	S
15° 26’ 10” E

	 	One Hundred Sixty-Four and 21/100 (164.21) feet to the point of
beginning; the last ten (10) courses being by the Westerly sideline of Crosby
Drive.





Excepting
and excluding from the above-described parcel so much thereof as is included within the
Order of Public Way Taking in Fee of Middlesex Turnpike/Crosby Drive by the Town of Bedford
recorded with the Middlesex S. D. Registry of Deeds in Book 40535, Page 532, as affected by
Affidavit recorded with said Deeds in Book 44112, Page 363.




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APPENDIX 1.1C




SITE PLAN



The Site Plan is provided for informational purposes only to indicate the general location of the
Building and the Parking Lot, as well as the general location of the Property in reference to the
surrounding streets. This Site Plan does not include the metes and bounds of the Property as
described on Appendix 1.1B.









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APPENDIX 1.1.1




RULES AND REGULATIONS




     1. Tenant shall not make any room-to-room canvas to solicit business from other tenants in the
Building and shall not exhibit, sell or offer to sell, use, rent or exchange any item or services
in or from the Premises unless ordinarily included within Tenant’s use of the Premises as specified
in the Lease.



     2. Tenant shall not make any use of the Premises which may be dangerous to person or property
or which shall increase the cost of insurance or require additional insurance coverage.



     3. Tenant shall not paint, display, inscribe or affix any sign, picture, advertisement,
notice, lettering or direction or install any lights on any part of the outside or inside of the
Building, other than the Premises, and then not on any part of the inside of the Premises which can
be clearly seen from outside the Premises, except as approved by Landlord in writing.



     4. Tenant shall not use the name of the Building in advertising or other publicity, except as
the address of its business.



     5. Tenant shall not obstruct or place objects on or in sidewalks, entrances, passages, courts,
corridors, vestibules, halls, elevators and stairways in and about the Building. Tenant shall not
place objects against glass partitions or doors or windows or adjacent to any open common space
which would be unsightly from the Building corridors or from the exterior of the Building.



     6. Bicycles shall not be permitted in the Building other than in a location designated by
Landlord.



     7. Tenant shall not allow any animals, other than seeing eye dogs, in the Premises or the
Building.



     8. Tenant shall not disturb other tenants or make excessive noises, cause disturbances, create
excessive vibrations, odors or noxious fumes or use or operate any electrical or electronic devices
or other devices that emit excessive sound waves or are dangerous to other tenants of the Building
or that would interfere with the operation of any devise or equipment or radio or television
broadcasting or reception from or within the Building or elsewhere, and shall not place or install
any projections, antennae, aerials or similar devices outside of the Building or the Premises.



     9. Tenant shall not waste electricity or water and shall cooperate with Landlord to assure the
most effective operation of the Building’s heating and air conditioning systems, and shall refrain
from attempting to adjust any controls which are not the property of Tenant except for the
thermostats within the Premises. Tenant shall keep all doors to the Premises closed.



     10. Unless Tenant installs new doors to the Premises, Landlord shall furnish two (2) sets of
keys for all doors to the Premises at the commencement of the Term. Tenant shall furnish Landlord
with duplicate keys for any new or additional locks on doors installed by Tenant. When the Lease
is terminated, Tenant shall deliver all keys to Landlord and will provide to Landlord the means of
opening any safes, cabinets or vaults left in the Premises.



     11. Tenant shall not install any signal, communication, alarm or other utility or service
system or equipment which is attached to the Premises without the prior written consent of
Landlord.



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     12. Tenant shall not use any draperies or other window coverings instead of or in addition to
the Building standard window coverings designated and approved by Landlord for exclusive use
throughout the Building.



     13. Landlord may require that all persons who enter or leave the Building identify themselves
to watchmen, by registration or otherwise. Landlord, however, shall have no responsibility or
liability for any theft, robbery or other crime in the Building. Tenant shall assume full
responsibility for protecting the Premises, including keeping all doors to the Premises locked
after the close of business.



     14. Tenant shall not overload floors; and Tenant shall obtain Landlord’s prior written
approval as to size, maximum weight, routing and location of heavy business machines, safes, and
other heavy objects.



     15. In no event shall Tenant bring into the Building inflammables such as gasoline, kerosene,
naphtha and benzene, or explosives or firearms or any other articles of an intrinsically dangerous
nature.



     16. Furniture, equipment and other large articles may be brought into the Building only at the
time and in the manner designated by Landlord. Movements of Tenant’s property into or out of the
Building and within the Building are entirely at the risk and responsibility of Tenant.



     17. No person or contractor, unless approved in advance by Landlord, shall be employed to do
janitorial work, interior window washing, cleaning, decorating or similar services in the Premises.



     18. Tenant shall not use the Premises for lodging, cooking (except for microwave reheating and
coffee makers) or manufacturing or selling any alcoholic beverages or for any illegal purposes.



     19. Tenant shall cooperate and participate in all reasonable security programs affecting the
Building.



     20. Tenant shall not loiter in the Building, nor shall Tenant, eat, drink, sit or lie in the
lobby or other public areas in the Building, except for the cafeteria and fitness center. Tenant
shall not go onto the roof of the Building or any other non-public areas of the Building (except
the Premises), and Landlord reserves all rights to control the public and non-public areas of the
Building. In no event shall Tenant have access to any electrical, telephone, plumbing or other
mechanical closets without Landlord’s prior written consent.



     21. Tenant shall not use the freight or passenger elevators, loading docks or receiving areas
of the Building except in accordance with regulations for their use established by Landlord.



     22. Tenant shall not dispose of any foreign substances in the toilets, urinals, sinks or other
washroom facilities, nor shall Tenant permit such items to be used other than for their intended
purposes; and Tenant shall be liable for all damage as a result of a violation of this rule.



     23. Tenant acknowledges that the Building is a non-smoking building. Tenant and its employees
shall be permitted to smoke only in those areas of the Property specifically designated by Landlord
as smoking areas, and in no event shall Tenant allow its employees or invitees to smoke in the
public areas of the Building.



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APPENDIX 1.1.2


OPTION SPACE





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APPENDIX 1.3.3




TENANT’S WORK AND ALTERATIONS




     1. Landlord’s Approval of Construction Documents. Tenant shall not perform any
Alterations (which term shall include “Tenant Work”) other than Permitted Alterations until
Tenant has received Landlord’s prior written approval of such Alterations, which shall not be
unreasonably withheld, conditioned or delayed. Whenever Tenant seeks to obtain Landlord’s approval
of any Alteration, Tenant shall, prior to commencing such Alteration, submit to Landlord
permit-ready, detailed drawings and specifications (“Construction Documents”) prepared and
stamped by an architect or engineer (either such professional, “Tenant’s Architect”)
registered in the Commonwealth of Massachusetts (and in connection with Tenant Work, approved by
Landlord). The Construction Documents, to the extent applicable to the specific Alteration
proposed by Tenant, shall set forth in detail the requirements for construction of the Alterations
(including all architectural, mechanical, electrical, plumbing, fire protection and structural
drawings and detailed specifications), shall be fully coordinated with one another and with field
conditions as they exist in the Premises and elsewhere in the Building, and shall show all work
necessary to complete the Alterations including all cutting, fitting, and patching and all
connections to the mechanical and electrical systems and components of the Building. The
Construction Documents shall show Alterations that (i) comply with all applicable laws,
regulations, building codes, (ii) unless approved by Landlord, do not in any manner affect any
structural component of the Building (including, without limitation, exterior walls, exterior
windows, core walls, roofs or floor slabs), (iii) are in all material respects compatible with the
electrical and mechanical components and systems of the Building, (iv) do not materially or
adversely affect any space in the Building other than the Premises (including the exterior of the
Building), (v) conform to floor loading limits, and (vi) with respect to all materials, equipment
and special designs, processes, or products, do not infringe on any patent or other proprietary
rights of others. Landlord’s approval of Construction Documents shall signify only Landlord’s
consent to the Alterations shown thereon and shall not result in any responsibility of Landlord
concerning compliance of the Alterations with laws, regulations, or codes, or coordination of any
aspect of the Alterations with any other aspect of the Alterations or any component or system of
the Building, or the feasibility of constructing the Alterations without damage or harm to the
Building, all of which shall be the sole responsibility of Tenant.



     Landlord shall approve or disapprove the Construction Documents within fourteen (14) days of
Landlord’s receipt thereof. If Landlord disapproves the Construction Documents, Landlord shall
specify the reasons for such disapproval, and Tenant shall re-submit revised Construction Documents
to Landlord for approval (to be granted or withheld within fourteen (14) days of receipt thereof).
Landlord may withhold its consent to any Alteration that (i) may exceed the capacity of or
adversely affect the capacity, maintenance, operating costs or integrity of the Building or its
structures or systems unless Tenant installs such supplemental equipment as is necessary to
alleviate the foregoing, (ii) violates any agreement which affects the Property or binds Landlord,
(iii) may diminish the value of the Premises for any general purpose office use unless Tenant
agrees to restore the Premises to its condition prior to such Alteration, (iv) may require any
unusual expense to re-adapt the Premises for any general purpose office use unless Tenant agrees to
restore the Premises to is conditions prior to such Alteration; or (v) if approval is required
under the operative loan documents or ground lease superior to the Lease, such Alteration is not
approved by the holder of any Mortgage superior to the Lease or the lessor under any ground lease
or other lease superior to the Lease, at the time the work is proposed. If, after the Construction
Documents have been approved by Landlord, Tenant requests any changes or substitutions to the
Construction Documents during construction, Tenant shall obtain Landlord’s written approval of such
change(s).



     2. Commencement of Construction. After Landlord has approved the Construction
Documents and prior to commencement of construction, Tenant’s Architect shall submit the
Construction



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Documents to the appropriate governmental agencies for plan checking and the issuance
of a building permit, and once received, Tenant shall deliver the following items to Landlord: (a)
a request for approval (which approval shall not be unreasonably withheld) of the person or entity
(including any employee or agent of Tenant) performing any Alterations (“Tenant
Contractor”); (b) the names, addresses and copies of contracts for all contractors then known;
(c) at Landlord’s election, all necessary governmental permits, licenses and approvals evidencing
compliance with all applicable Legal Requirements; (d) certificates of insurance, issued by a
responsible insurance company qualified to do business in the Commonwealth of Massachusetts and
reasonably approved by Landlord (a “Qualified Insurance Company”), evidencing the insurance
required by Appendix 1.3.3.A hereto, naming Landlord and any other parties designated by
Landlord as additional insureds; (e) all other documents and information as Landlord may reasonably
request in connection with the construction of any Alteration.



     3. Construction. All Alterations shall be performed in a good and workmanlike manner,
in accordance with the approved Construction Documents, and shall meet the reasonable standards for
construction and quality of materials established by Landlord for the Building. Once commenced,
each Alteration shall be diligently prosecuted to completion by Tenant. In addition, all
Alterations shall be performed at Tenant’s sole risk and in compliance with all applicable Legal
Requirements, and all regulations and requirements of Landlord’s and Tenant’s insurers. In
performing any Alteration, each Tenant Contractor shall comply with Landlord’s requirements
relating to the time and methods for such work, use of delivery elevators and other building
facilities; and each Tenant Contractor shall not interfere or disrupt any other tenant or other
person using the Building in any material respect. Each Tenant Contractor shall in all events work
on the Premises without causing labor disharmony, coordination difficulties, or delay or impair any
guaranties, warranties or obligations of any contractors of Landlord. Tenant shall pay Landlord
for all reasonable costs and expenses of Building services and facilities associated with any
Alteration, including use of the freight elevator, sprinkler shutdown, debris removal and all other
costing charges associated with any Alteration. If any Tenant Contractor uses any Building
services or facilities, such Contractor, jointly and severally with Tenant, shall agree to
reimburse Landlord for the cost thereof based on Landlord’s schedule of charges established from
time to time (and if no such charges have been established, then based on Landlord’s reasonable
charge established at the time). Each Tenant Contractor shall, by entry into the Building, be
deemed to have agreed to indemnify and hold Landlord and its partners, affiliates, officers,
agents, servants and employees and Landlord’s management, leasing and development agents and
Landlord’s mortgagee(s) (the “Indemnitees”), harmless from any claim, loss or expense
arising in whole or in part out of any act or omission committed by such person while in the
Building or on the Property, to the same extent as Tenant has so agreed in this Lease, the
indemnities of Tenant and each Tenant Contractor to be joint and several. Upon completion of any
Alterations Tenant shall deliver to Landlord and Landlord’s property manager copies of the final
Construction Documents and any and all other project drawings in the form of a CAD disk.



     4. Payment for Alterations. Tenant shall pay directly to Tenant’s Contractor all
costs of any Alterations as per Tenant’s construction agreement with such Contractor, so that the
Property shall always be free of liens for labor or materials. If any such lien shall exist,
Tenant shall, within twenty (20) days after the filing of such lien, have such lien discharged of
record or obtain a recordable bond in form, amount, and issued by a surety reasonably satisfactory
to Landlord,
indemnifying Landlord and any Mortgagee against all costs and liabilities resulting from such
lien and the foreclosure or attempted foreclosure thereof. If Tenant fails to have such lien so
released or to obtain such bond, Landlord or the Mortgagee, without investigating the validity of
such lien, may pay or discharge the same; and Tenant shall reimburse Landlord or the Mortgagee, as
applicable, upon demand for the amount so paid by Landlord or the Mortgagee, including expenses and
attorneys’ fees. Tenant hereby indemnifies Landlord against liability for any mechanics’ and other
liens filed in connection with the costs of any and all Alterations, including the liens of any
chattel mortgages, security agreements or financing statements upon any materials or fixtures
installed in and constituting part of the Premises. Finally, upon completion



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of any Alteration
costing in excess of $25,000, Tenant shall, upon Landlord’s request, promptly furnish Landlord with
waivers of lien in form and substance satisfactory to Landlord covering all labor and materials
included in such Alteration.



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APPENDIX 1.3.3.A


WORK INSURANCE SCHEDULE


Indemnification


     Tenant agrees to indemnify and hold Landlord harmless from all claims for bodily injury and
property damage that may arise from Tenant’s or any Tenant Contractor’s performance of any
Alterations as defined in Section 3.5.1 of this Lease and/or Tenant Work as defined in Section
1.3.3 of this Lease.


Tenant’s Liability Insurance


     Tenant shall purchase and maintain such insurance as will protect Tenant from the claims set
forth below which may arise out of or result from any Tenant Work whether such Tenant Work be
completed by Tenant or by any Tenant Contractor or by any person directly or indirectly employed by
Tenant or any Tenant Contractor, or by any person for whose acts Tenant or any Tenant Contractor
may be liable:


     1. Claims under workers’ compensation, disability benefit and other similar employee benefit
acts which are applicable to the Tenant Work to be performed.


     2. Claims for damages because of bodily injury, occupational sickness or disease, or death of
employees under any applicable employer’s liability law.


     3. Claims for damages because of bodily injury, or death of any person other than Tenant’s or
Tenant Contractor’s employees.


     4. Claims for damages insured by usual personal injury liability coverage which are sustained
(a) by any person as a result of an offense directly or indirectly related to the employment of
such person by the Tenant or Tenant Contractor or (b) by any other person.


     5. Claims for damages, other than to the Tenant Work itself, because of injury to or
destruction of tangible property, including loss of use therefrom.


     6. Claims for damages because of bodily injury or death of any person or property damage
arising out of the ownership, maintenance or use of any motor vehicle.


     Tenant’s Commercial General Liability Insurance shall include premises/operations (including
explosion, collapse and underground coverage if such Tenant Work involves any underground work),
elevators, independent contractors, completed operations, and blanket contractual liability on all
written contracts, all including broad form property damage coverage.


Tenant’s Commercial General, Automobile, Employers and Umbrella Liability Insurance shall be
written for not less than limits of liability as follows:



	 	a.	 	Commercial General Liability




	 	 	 	 	 
	Bodily Injury and Property Damage Occurrence/Aggregate
	 		$2,000,000/$3,000,000	 




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	 	b.	 	Comprehensive Automobile Liability




	 	 	 	 	 
	Bodily Injury and Property Damage
	 	$1,000,000 Each Person
	 
	 	$1,000,000 Each Occurrence





	 	c.	 	Employers Liability




	 	 	 	 	 
	Each Accident
	 	$	500,000	 
	Disease — Policy Limit
	 	$	500,000	 
	Disease — Each Employee
	 	$	500,000	 






	 	d.	 	Umbrella Liability           $5,000,000 per occurrence



All Tenant Contractors shall carry the same coverages and limits as specified above, unless
different limits are specifically negotiated with Landlord.


The foregoing policies shall contain a provision that coverages afforded under the policies will
not be canceled or not renewed until at least sixty (60) days’ prior written notice has been given
to the Landlord. Certificates of Insurance showing such coverages to be in force shall be filed
with the Landlord prior to the commencement of any Tenant Work. Coverage for Completed Operations
must be maintained for three years following completion of the work and certificates evidencing
this coverage must be provided to the Landlord.


The minimum A.M. Best’s rating of each insurer shall be “A” or better or a FPR of 7 or better.
Landlord shall be named as an Additional Insured under Tenant’s Commercial General and Umbrella
Liability Insurance policies.


Tenant’s and each Tenant Contractor’s responsibilities include:




	 	•	 	insuring all materials, on an All Risks basis for the full replacement cost, in
transit and until delivered to the project site;
	 
	 	•	 	insuring all tools and equipment used in the installation process;
	 
	 	•	 	assuming costs within the deductible(s) if a property loss is caused by the
Tenant’s or any Tenant Contractor’s failure to take reasonable steps to prevent the
loss;
	 
	 	•	 	protecting the site to prevent both natural and man-caused (i.e., arson, theft,
vandalism) losses.




Property Insurance Loss Adjustment


Any insured loss shall be adjusted with the Landlord and made payable to the Landlord, subject to
any applicable mortgagee clause.


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APPENDIX 1.3.4




TENANT IMPROVEMENTS — LANDLORD’S WORK




     This Appendix 1.3.4 (this “Appendix”) is a part of that certain Lease between MSCP
Crosby, LLC, as Landlord, and Acme Packet, Inc., as Tenant for the lease of space at 100 Crosby
Drive, Bedford, Massachusetts (the “Lease”). If there is any conflict between the Lease
and this Appendix regarding the construction of the Landlord’s Work, this Appendix shall govern.



     1. Defined Terms. All defined terms referred to in this Appendix shall have the same
meaning as defined in the Lease to which this Appendix is a part, except where expressly defined to
the contrary.



     2. Additional Definitions. Each of the following terms shall have the following
meaning:



          “Construction Plans” — The complete plans and specifications for the construction of
the Tenant Improvements consisting of all architectural, engineering, mechanical and electrical
drawings and specifications which are required to obtain all building permits, licenses and
certificates from the applicable governmental authority(ies) for the construction of the Tenant
Improvements. The Construction Plans shall be prepared by duly licensed and/or registered
architectural and/or engineering professionals selected by Landlord in its sole and absolute
discretion.




          “Exterior Improvements” — certain improvements to be made to the landscaped areas
located on the Property, as well as certain building exterior cleaning, all as further specified on
Schedule 2 attached hereto and made a part hereof.




          “Force Majeure Delays” — Any delay caused by Force Majeure (as defined in the Lease).
Subject to the terms of the Lease, the time for performance of any obligation of Landlord to
construct the Landlord’s Work under this Appendix or the Lease shall be extended at Landlord’s
election by the period of any Force Majeure Delays.




          “Space Plan” — That certain Space Plan and Scope of Work attached hereto as
Schedule 1, which reflect the Tenant Improvements to be constructed by Landlord. Landlord
and Tenant hereby approve of the Space Plan.




          “Substantial Completion,” “Substantially Complete,” “Substantially Completed” — The
terms Substantial Completion, Substantially Completed and Substantially Complete shall mean when
the following have occurred or would have occurred but for Tenant Delays:




               (a) Landlord has delivered to Tenant a written notice stating that the Landlord’s Work has
been Substantially Completed substantially in accordance with the Construction Plans, except “punch
list” items which may be completed without materially impairing Tenant’s use of the Premises or a
material portion thereof; and



               (b) Landlord has obtained from the appropriate governmental authority a temporary, conditional
or final certificate of occupancy or signed building permit (or equivalent), if one is required,
for the Tenant Improvements permitting occupancy of the Premises by Tenant.



          “Tenant Delay” — Any actual delay incurred by Landlord in completing the Landlord’s
Work which is not caused in whole or in part by Landlord and is directly due to: (i) a delay by
Tenant, or by any person employed or engaged by Tenant, in approving or delivering to Landlord any
plans,




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schedules or information, including, without limitation, the Construction Plans beyond the
applicable time period set forth in this Appendix, if any; (ii) any changes requested by Tenant in
or to previously approved work or in the Space Plan or Construction Plans; (iii) requests for
materials and finishes which are not readily available; (iv) delays in delivery of any materials
specified by Tenant through change orders; (v) the failure of Tenant to pay as and when due under
this Appendix all costs and expenses to construct the Tenant Improvements to the extent Tenant is
required to pay for such costs in this Appendix and/or in the Lease; or (vi) unreasonable
interference with the construction of the Landlord’s Work. Landlord shall notify Tenant in writing
within three (3) business days of any occurrences or condition giving rise to any claimed Tenant
Delay; provided, however, if such notice is not timely given, the length of the Tenant Delay shall
be decreased by the number of days between such third (3rd) business day after the
occurrence or condition giving rise to such claimed Tenant Delay and the date of such notice.




          “Tenant Improvements” — The improvements to be installed by Landlord in the portion of
the Premises substantially in accordance with the Space Plan. The type and quality of materials to
be used by Landlord to construct the Tenant Improvements will be consistent with the Landlord’s
standard building improvements for the Building, except as described to the contrary in the Space
Plan.




     3. Construction of the Tenant Improvements.



          3.1 Construction Plans. Landlord shall cause to be prepared the Construction Plans
for the Tenant Improvements that are consistent with and are logical evolutions of the Space Plan
and the building standards. Landlord shall provide a copy of the Construction Plans to Tenant for
its review and approval, which will not be unreasonably withheld. Tenant shall notify Landlord
in writing within eight (8) days after receipt of Construction Plans or any preliminary plans
that (i) Tenant approves of such plans ; or (ii) Tenant disapproves the plans because they vary in
design from the Space Plan approved by Landlord and Tenant in the particular instances specified by
Tenant in such notice (including, without limitation, the specific changes requested by Tenant).
The failure of Tenant to provide such written notice within said eight (8) day period shall be
deemed as approval by Tenant of such plans.




          3.2 Construction. Landlord shall construct the Tenant Improvements substantially in
accordance with the Construction Plans and shall make the Exterior Improvements. The construction
contract for constructing the Landlord’s Work and the contractor(s) to perform the work shall be
approved and/or selected, as the case may be, by Landlord at its sole and absolute discretion
without the consent of Tenant.




          3.3 Tenant’s Responsibility. Tenant shall be solely responsible for the suitability
for the Tenant’s needs and business of the design and function of the Tenant Improvements. Tenant
shall also be responsible for procuring or installing in the Premises any trade fixtures,
equipment, furniture, furnishings, telephone equipment or other personal property (“Personal
Property”) to be used in the Premises by Tenant, and the cost of such Personal Property shall
be paid by Tenant. Tenant shall conform to the Building’s wiring standards in installing any
telephone equipment and shall be subject to any and all rules of the site during construction.




     4. Payment of Construction Costs. (a) Subject to the following, Landlord shall pay
for the costs to make the Exterior Improvements and to construct the Tenant Improvements based on
the Space Plan in existence as of the date hereof. Any costs of the Tenant Improvements in excess
of $3,198,768.00, whether due to changes in the Tenant Improvements reflected in the Space Plan or
in the Construction Plans requested by Tenant, or as a result of any Tenant Delay, or otherwise,
shall be paid by Tenant as provided in section 5 below. Notwithstanding the foregoing, if Tenant
makes approved changes to the Tenant Improvements which result in cost savings, such savings may be
applied to other




-A-18-









 




portions of the Tenant Improvements (the intent of the parties being that while
certain line-items on the construction budget may change, Landlord shall pay for the Tenant
Improvements up to $3,198,768.00).




     (b) Landlord shall either (i) provide written confirmation from its current Mortgagee that
loan proceeds in the amount of $3,198,768.00 are available to fund the Tenant Improvements, or (ii)
deposit in escrow either cash or a letter of credit in the amount of $3,198,768.00, prior to
commencement of construction, with an escrow agent of Landlord’s choice and reasonably approved by
Tenant. Any funds/letter of credit deposited in escrow by Landlord will be disbursed/drawn down
and then disbursed by the escrow agent for payment of such costs of the Tenant Improvements, at
Landlord’s direction, and any amounts remaining in escrow after Substantial Completion of the
Landlord’s Work shall be promptly returned to Landlord.



     5. Changes in Work. Tenant shall not be permitted to make any change in the Tenant
Improvements without the prior written approval of Landlord, which may be exercised, and made
subject to such conditions as Landlord may require, in its reasonable discretion, and no changes
may
be made by Tenant to the Exterior Improvements. Any change approved by Landlord that in
Landlord’s reasonable judgment results in a material delay in constructing the Tenant Improvements
shall be deemed a Tenant Delay, and shall extend the time period by which Landlord must
Substantially Complete the Tenant Improvements, but shall not extend or postpone the date for
payment of rent or for commencement of the term under this Lease. The cost of such changes and the
additional costs as a result of any other Tenant Delay, including the cost to revise the
Construction Plans, obtain any additional permits, construct any additional improvements required
as a result thereof, the cost for materials and labor, the cost for any construction supervisory or
administrative fee payable by Landlord to its property manager, and all other additional costs
incurred by Landlord from resulting delays in completing the Tenant Improvements, which, in any
case increase the cost of the Tenant Improvements to an amount in excess of $3,198,768.00, shall be
paid by Tenant to Landlord within twenty (20) days after Tenant’s receipt of notice from Landlord.
If Landlord does not receive such payment within said twenty (20) day period, Landlord shall have
the right, in addition to any other rights or remedies available under the Lease, at law or in
equity, to (i) proceed with the other work not affected by such change until such payment is
received; and/or (ii) proceed with the work without making such change; in which case the
commencement or completion of such work shall not be deemed a waiver of Tenant’s obligation to pay
for same or any additional costs or expenses incurred as a result thereof. Any delay caused as a
result of such a change or request for a change shall, subject to the foregoing provisions,
constitute a Tenant Delay.



     6. Tenant’s Lease Default. Notwithstanding any provision to the contrary contained in
the Lease or this Appendix, if and so long as a Default by Tenant exists under the Lease, then (i)
in addition to all other rights and remedies granted to Landlord pursuant to the Lease, Landlord
shall have the right to cease the construction of the Landlord’s Work (in which case, Tenant shall
be responsible for any delay in the Substantial Completion of the Landlord’s Work caused by such
work stoppage) until such Default is cured, and (ii) all other obligations of Landlord under the
terms of this Appendix shall be forgiven until such time as such Default is cured pursuant to the
terms of the Lease.



-A-19-









 




SCHEDULE 1 — SPACE PLAN & SCOPE





-A-20-







 







-A-21-







 







-A-22-







 




Scope of Work


100 Crosby Drive, Bedford, MA


1. DEMO



	 	-	 	Removal as required for new work. Demolition includes drywall partitions
indicated on plans, selective acoustical ceiling grid affected by demo and new
construction, acoustical ceiling tiles in all open office areas and areas affected by
demo and new construction, drywall ceilings, all existing carpet, vct/base, selected
doors/frames indicated on plans and millwork as indicated on plans.
	 
	 	-	 	Demo also includes cutting openings for doors and sidelights into existing walls.
	 
	 	-	 	Exclusions: exterior work, hazardous material removal




2. CONCRETE, MASONRY, STEEL and ROOFING



	 	-	 	New concrete floor penetrations as required for MEP trades
	 
	 	-	 	Infill of old concrete floor penetrations (6” or less)
	 
	 	-	 	Masonry modifications at Manufacturing/loading dock area for installation of
exhaust fan at the high temp test area
	 
	 	-	 	Exclusions: Major floor infill except as noted above, structural steel
modifications for special equipment, exterior masonry modifications except as listed
above and any and all roof penetrations or modifications.




3. WOOD AND PLASTICS



	 	-	 	Rough Carpentry scope as follows:





	 	o	 	Provide and install all blocking needed to install millwork listed below.
	 
	 	o	 	Provide and install plywood backer board s for the tel/data areas.
	 
	 	o	 	Wood base repairs in the executive area on floor four. Reuse
of existing assumed.





	 	-	 	Supply and install millwork scope as follows:





	 	o	 	8 lf of laminate uppers and lowers in the Coffee/ Pantry area on floor two
	 
	 	o	 	14 lf of laminate uppers and lowers in the Pantry area on floor two
	 
	 	o	 	90 lf of laminate base cabinets and counter at the
Copy/Storage area on floor three
	 
	 	o	 	10 lf of laminate uppers and lowers in the Pantry area on floor four
	 
	 	o	 	12 lf of laminate countertop at seating area in the Pantry area on floor four





	 	-	 	Millwork items to remain as follows:





	 	o	 	10 of uppers and lowers located in the Coffee/Pantry area on floor two.
	 
	 	o	 	24 of uppers and lowers located in the Coffee/Pantry area on floor three.
	 
	 	o	 	Copy area uppers and lowers on floor four.





	 	-	 	Exclusions: all open office millwork including Copy/Print areas unless
identified above, closet pole and shelves, adjustable shelving and reception desk.




4. DOORS, FRAMES & HARDWARE


-A-23-







 





	 	-	 	All Building standard wood doors, metal/aluminum frames and hardware will be
reused and relocated.
	 
	 	-	 	$5,000 has been carried for any misc hardware required at existing doors.
	 
	 	-	 	Exclusions: card access hardware, keying and exterior door modifications.




5. GLASS




	 	-	 	Supply and install glass scope as follows:





	 	o	 	Modify existing Glass Lobby/Atrium glass wall and doors
(center on existing entry)
	 
	 	o	 	New glass wall and door at Conf. room on floor two (approx.
25’ x9’)
	 
	 	o	 	New glass wall and door at Marketing Conf. room on floor two
(approx. 30’ x9’)
	 
	 	o	 	New glass wall at Lobby Conf. room on floor two (approx. 6’ x9’)
	 
	 	o	 	New glass wall at Conf. room (near tel. room) on floor two (approx. 5’ x9’)
	 
	 	o	 	New glass wall at Demo room on floor two (approx. 10’ x9’)
	 
	 	o	 	New glass wall at existing Lab on floor three (approx. 50’ x9’)
	 
	 	o	 	New glass wall at Conf. room on floor three (approx. 20’ x9’)
	 
	 	o	 	New glass wall at Computer Lab entrance on floor three (approx. 5’ x9’)
	 
	 	o	 	New glass wall at Prof. Services Conf. room on floor four (approx. 17’ x9’)
	 
	 	o	 	New glass wall at Computer Labs entrance on floor four (approx. 10’ x9’)
	 
	 	o	 	New 2’-6” full height sidelights as shown on plan (76 total)





	 	-	 	Exclusions: exterior window replacement, access hardware @ glass doors.




6. DRYWALL




	 	-	 	Supply and install drywall scope as follows:





	 	o	 	New partitions as shown on plans





	 	 	 	Wall locations as follows





	 	•	 	All office walls, open office partitions to go 6” above
ceiling w/out insulation.
	 
	 	•	 	Training and Conference Rooms: Walls to deck with
insulation.
	 
	 	•	 	Demising Walls: Same as conference room except 1 hour
rated.





	 	 	 	Wall types as follows:





	 	•	 	Interior 6” above ceiling Partitions: Framed with 3 - 5/8”,
25 gage metal studs on 16” centers. Partitions shall have one
layer of 5/8” gypsum wallboard on each side, taped and sanded.
	 
	 	•	 	Demising Partition: Framed with 3 - 5/8”, 25 gage metal
studs on 16” centers. Partitions shall have one layer of 5/8”
gypsum wallboard, each side, taped and sanded. Cavity shall
have mineral wool acoustical insulation





	 	o	 	Infill abandoned openings in existing walls.
	 
	 	o	 	Topping off of existing demising walls that will separate
Acme from future vacancies.
	 
	 	o	 	Build new low walls for glass at 3rd floor labs.
	 
	 	o	 	Patch and rebuild column closures after demo.
	 
	 	o	 	Patch at new openings at existing walls.
	 
	 	o	 	Patch and repairs at areas of demolition.
	 
	 	o	 	Modify walls for new sidelight openings.
	 
	 	o	 	Mullion connections as required.




-A-24-







 





	 	-	 	Exclusions: topping off existing office or conference room walls, furring
over existing masonry, upgrading corridor partitions, new ceilings or soffits. (misc.
between rooms and ceiling changes are assumed).




7. CEILINGS



	 	-	 	Acoustical Ceiling scope as follows:





	 	o	 	Furnish and install new acoustical ceiling grid to match
existing in areas affected by demo and or new construction.
	 
	 	o	 	Existing ceiling grid that remains will be painted to match
new.
	 
	 	o	 	Furnish and install new acoustical ceiling tiles (Armstrong
2x4 Cortega #769) in all areas





	 	-	 	Exclusions: Second look tiles.




8. FLOOR COVERINGS



	 	-	 	Flooring scope as follows:





	 	o	 	Furnish and install new carpet in all areas not identified
below. Carpet allowance of $25 sy furnished and installed has been carried.
	 
	 	o	 	Furnish and install 12” x 12” vct in the following areas:
Coffee areas, Pantry areas, Storage rooms and tel/data closets
	 
	 	o	 	Furnish and install SDT carpet tile in the following areas:
Manufacturing area on floor two, Computer Labs on floor three and Computer Lab
and Professional Service Lab on floor four. Note that an allowance of $5 sf
furnished and installed has been carried.
	 
	 	o	 	Furnish and install vinyl base throughout all areas, base to
be 3” x 1/8” Johnsonite vinyl base. Straight at carpet, cove at vct.
	 
	 	o	 	Allowance of $14,500 has been carried for floor prep throughout.





	 	-	 	Exclusions: upgraded flooring materials.




9. PAINTING



	 	-	 	Painting scope as follows:





	 	o	 	New drywall walls to receive primer and two coats of latex egg shell finish.
	 
	 	o	 	Existing drywalls walls to receive two coats of latex egg shell finish.
	 
	 	o	 	Metal frames and sidelights to receive two coats of semi-gloss enamel finish.
	 
	 	o	 	Existing wood doors will be painted or will be lightly sanded
and a new coat of poly finish will be applied.
	 
	 	o	 	Scope includes lift in lobby areas.





	 	-	 	Exclusions: exterior painting, drywall ceilings, main lobby/atrium ceiling,
polymyx, wallcovering, common corridors and window sills.




10. SPECIALTIES/EQUIPMENT/FURNISHINGS




	 	-	 	Scope as follows:





	 	o	 	Supply and install fire extinguishers and cabinets to meet code.



-A-25-








 





	 	o	 	Rework existing window treatment and tracks due to new layout.





	 	-	 	Exclusions: AV equipment, whiteboards, new window treatments, bathroom
equipment, kitchen equipment, furniture, moving partitions, moving existing equipment
or any special equipment.




11. PLUMBING



	 	-	 	Plumbing scope as follows:





	 	o	 	Make safe and demo as required for new layout.
	 
	 	o	 	Supply and install one new sink and faucet at the new Pantry on floor two.
	 
	 	o	 	Rework existing sink and faucet at the new Pantry on floor four.





	 	-	 	Exclusions: existing bathroom work, existing Coffee /Pantry on floor two and
three, make up water for humidification, plumbing in lab areas, special equipment
connections and engineering drawing and calcs.




12. SPRINKLER




	 	-	 	Sprinkler scope as follows:





	 	o	 	Hydraulically designed, light hazard wet sprinkler system
throughout areas affected by demo and or new construction. (adjust existing
sprinkler for new layout)
	 
	 	o	 	Sprinkler heads shall match existing.
	 
	 	o	 	Supply and install pre-action system in manufacturing lab on
floor two, Computer Lab on floor three and Professional Services Lab on floor
four. Note: existing Computer Lab on floor four already has a pre-action
system and will remain.





	 	-	 	Exclusions: existing ceiling areas not affected by demo or new construction,
special equipment requirements, special chemical systems or testing existing(note:
Computer Lab on floor four has an existing Inergen system) and engineering drawing and
calcs.




13. HVAC




	 	-	 	HVAC Scope as follows:





	 	o	 	Demo of hvac in renovated areas, work would consist of make
safe of abandoned ductwork and RGD’s.
	 
	 	o	 	Normal area modifications as follows: Rework existing duct,
RGD’s and vav boxes in areas so that the hvac system is coordinated with the
new layout. These areas include all offices, open areas, conf. rooms, training
rooms and copy rooms.





	 	§	 	New conf. rooms will have their own zone.
	 
	 	§	 	Network rooms will get their own zone.





	 	o	 	Specialty area modification as follows: Rework existing duct,
RGD’s and vav boxes in areas so that the hvac system is coordinated with the
new layout: These areas include the Manufacturing area on floor two and the
Computer Lab Expansion area on floor three
	 
	 	o	 	All RGD’s shall match existing.
	 
	 	o	 	Assume reuse of the building control system and capacity to do so.
	 
	 	o	 	Certified air balancing for all areas affected by construction.
	 
	 	o	 	Exhaust system required for the high heat test area in Manufacturing Lab.





	 	-	 	HVAC system to remain for reuse as follows:




-A-26-







 





	 	o	 	3rd floor existing lab (1-15 ton unit tied into the house system to remain).
	 
	 	o	 	4th floor existing Computer lab (2-20 ton units, one is on
the house system and the other is a supplemental system that are to remain).
	 
	 	o	 	4th floor existing Professional Services lab (2-12.5 ton
unit supplemental Carrier systems to remain).





	 	-	 	Exclusions: repairs to existing chillers, site scan or link systems,
additional supplemental hvac, special equipment requirements, and engineering drawing
and calcs.




14. ELECTRICAL




	 	-	 	Electrical lighting scope as follows:





	 	o	 	Supply and install all new lighting throughout the Acme space.
	 
	 	o	 	$350,000 fixture allowance has been carried until fixtures are specified.
	 
	 	o	 	Offices and work areas shall have occupancy sensors installed
to control lighting as required by energy code.
	 
	 	o	 	Exit Lights and Emergency Lighting will be installed, where
required per code.





	 	-	 	Electrical distribution for normal areas as follows:





	 	o	 	Demo and make safe as required.
	 
	 	o	 	Open office furniture feeds for Acme supplied furniture systems.
	 
	 	o	 	Closed offices: three outlets per office. One circuit for 2 offices.
	 
	 	o	 	Conference rooms: outlets in floor for power.
	 
	 	o	 	Convenience power throughout Acme space.
	 
	 	o	 	Tel/data conduit system.
	 
	 	o	 	HVAC power wiring.





	 	-	 	Electrical distribution for Specialty areas as follows:





	 	o	 	Demo and make safe as required.
	 
	 	o	 	Includes all required panel boards and transformers.
	 
	 	o	 	Manufacturing area on floor two to be provided with the
following: 600 amp service with required computer lab power wiring, includes
overhead cable trays and bus duct.
	 
	 	o	 	Existing Computer Lab and Expansion Lab on floor three to be
provided with the following: 400 amp service with required computer lab power
wiring, includes overhead cable trays and bus duct.
	 
	 	o	 	Existing Computer Lab on floor Four to be provided with the
following: 600 amp service with required computer lab power wiring, includes
overhead cable trays and bus duct.
	 
	 	o	 	Existing Professional Services Lab on floor four to be
provided with the following: 400 amp service with required computer lab power
wiring, include overhead cable trays and bus duct.
	 
	 	o	 	Assume reuse of as much of the existing infrastructure as possible.
	 
	 	o	 	HVAC power wiring.





	 	-	 	Misc Equipment requirements as follows:





	 	o	 	Testing and startup of the existing 300kw generator and Transfer Switches.
	 
	 	o	 	Testing and startup of the existing UPS systems.





	 	-	 	Fire Alarm scope as follows:




-A-27-







 





	 	o	 	Smoke Detectors, Heat Detectors, Remote LED’s Smoke or heat
detectors will be installed, where required. Assume reuse of the existing
system.
	 
	 	o	 	Fire Alarm Horn/Strobes will be installed, where required by code.
	 
	 	o	 	Programming and testing for the equipment above.





	 	-	 	Electrical equipment and systems to remain for reuse as follows:





	 	o	 	300 kw generator that services the Computer Lab on floor four.
	 
	 	o	 	UPS systems that service the Computer Lab and Professional
Services Lab on floor four.





	 	-	 	Exclusions: additional generator support, additional UPS support, repairs to
existing electrical service, access/security systems, power poles, voice/data, special
equipment requirements, electrical in remaining vacancies, exterior work and
engineering drawing and calcs.




15. Other Exclusions.


-      Although a structural stairwell and a mezzanine is shown on the Space Plans on the lobby
level, work associated with such stairwell and mezzanine is NOT included in the definition of
Tenant Improvements. The construction of such stairwell and mezzanine, however, may be
requested, provided that all costs in connection therewith shall be paid by Tenant. If Tenant
requests the construction of the stairwell and mezzanine, the scope of such work shall be as
follows: furnish and install structural steel mezzanine with internal stairwell. The mezzanine
will be open to the main lobby and will be bordered by glass guardrails and stainless steel
handrails. Misc finishes including lighting and carpet will also be installed. Excludes HVAC
and sprinkler modifications.


-A-28-







 




SCHEDULE 2 — DESCRIPTION OF LANDSCAPING WORK AND EXTERIOR CLEANING


100 CROSBY DRIVE, BEDFORD

EXTERIOR IMPROVEMENT DESCRIPTION


The following list of improvements shall be completed as part of the building exterior renovations
to be completed by Landlord prior to June 2010.


NEW PLANTINGS



	1.	 	The property will institute seasonal planting of flowers to blend with the existing annuals.
	 
	2.	 	New plantings and flower bed around the New Entry Sign
	 
	3.	 	New plantings and mulch on  unmanicured slope adjacent to loading docks.
	 
	4.	 	Install plantings against concrete retaining wall at East Parking lot across from loading dock.
	 
	5.	 	Install new plantings on each side of a new set of stairs leading down from the east parking lot
to the front entry
of the building.
	 
	6.	 	New boxwood hedge around the intake grill adjacent to the East Entrance.

	 
	7.	 	New plantings installed at both building entrances (East and South).
	 
	8.	 	Install new lower plantings (below window line) around the entire South and East side building
perimeter







-A-29-








 




REMOVAL



	1.	 	Remove all mature trees against the building on the East and South side.

	 
	2.	 	Remove plantings blocking first floor windows on East side and replace with lower plants.







-A-30-







 





SITE IMPROVEMENTS





	1.	 	Power wash building exterior.
	 
	2.	 	Wash all windows inside and out.
	 
	3.	 	New Monument Sign at entrance
	 
	4.	 	New way finding signage throughout complex
	 
	5.	 	New Acme Packet exterior sign (Tenant responsibility)
	 
	6.	 	Repair and reset granite curbing
	 
	7.	 	Remove and replace island at the top of the stairs to East parking lot.
	 
	8.	 	Repave from main entry at Crosby Drive to South Entry and to loading dock.
	 
	9.	 	Reseal and restripe all parking lot areas which are not being replaced.
	 
	10.	 	Install and relocate 6 handicap spaces to the right of East Entrance.
	 
	11.	 	Connect concrete sidewalks  between East and South Entrances.
	 
	12.	 	All timber stairs in upper lots replaced with new concrete stairs.
	 
	13.	 	Replace walkway/stairs from middle lot to South Entrance.
	 
	14.	 	Paint all exterior hand rails.
	 
	15.	 	Install new screening to seclude loading dock area.










-A-31-









 




LANDSCAPING IMPROVEMENTS



	1.	 	Remove all scrub and secondary growth in parking lot areas.
	 
	2.	 	Remove all scrub and secondary growth along Crosby Drive.
	 
	3.	 	Repair guard rail at site entrance.
	 
	4.	 	Pitch prune all pine trees for better building visuals.
	 
	5.	 	Remove all stumps, sand and boulders in parking lot islands and re-sod islands.







-A-32-







 




APPENDIX 2.6.2




FORM OF LETTER OF CREDIT




STANDBY
LETTER OF CREDIT DRAFT




IRREVOCABLE
STANDBY LETTER OF CREDIT NO. SVBSF               




DATE:                     , 2009




BENEFICIARY:

MSCP CROSBY, LLC

C/O DIVCO WEST REAL ESTATE SERVICES, INC.

200 FIFTH AVENUE, FIRST FLOOR

WALTHAM, MA 02451

ATTN: JAMES E. LESKO, III




APPLICANT 

ACME PACKET, INC. 

71 THRID AVENUE

BURLINGTON, MA 01803



AMOUNT: US $603,466.50 (SIX HUNDRED THREE THOUSAND FOUR HUNDRED SIXTY SIX AND 50/100 U.S.
DOLLARS)



EXPIRATION DATE:                     , 2010 [ONE YEAR FROM LC ISSUE DATE]



LOCATION: AT OUR COUNTERS IN SANTA CLARA, CALIFORNIA 



DEAR
SIR/MADAM:



WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVBSF                     IN YOUR
FAVOR AVAILABLE BY YOUR DRAFT DRAWN ON US AT SIGHT IN THE FORM OF EXHIBIT “A” ATTACHED AND
ACCOMPANIED BY THE FOLLOWING DOCUMENTS:



1. THE
ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENT(S), IF ANY.



2. A DATED CERTIFICATION FROM THE BENEFICIARY, PURPORTEDLY SIGNED BY AN AUTHORIZED
OFFICER, FOLLOWED BY HIS/HER DESIGNATED TITLE, STATING ONE OF THE FOLLOWING:





	(A)	 	“THE UNDERSIGNED CERTIFIES THAT BENEFICIARY IS ENTITLED TO DRAW UNDER THE
IRREVOCABLE LETTER OF CREDIT NO.
                PURSUANT TO THE TERMS OF A LEASE, DATED
NOVEMBER
                    , 2009, AS AMENDED, BETWEEN BENEFICIARY, AS LANDLORD, AND APPLICANT,
AS TENANT.”
	 
	 	 	          OR
	 
	(B)	 	“THE UNDERSIGNED CERTIFIES THAT BENEFICIARY IS ENTITLED TO DRAW UNDER THE
IRREVOCABLE LETTER OF CREDIT NO.
                 BECAUSE APPLICANT HAS FILED A VOLUNTARY
BANKRUPTCY PETITION UNDER 11 USC 101 ET SEQ., AS AMENDED, OR UNDER THE INSOLVENCY LAWS OF
ANY JURISDICTION.”
	 
	 	 	          OR
	 
	(C)	 	“THE UNDERSIGNED CERTIFIES THAT BENEFICIARY IS ENTITLED TO DRAW UNDER THE
IRREVOCABLE LETTER OF CREDIT NO.
                BECAUSE AN INVOLUNTARY PETITION UNDER 11 USC
101 ET SEQ., AS AMENDED, OR UNDER THE INSOLVENCY LAWS OF ANY JURISDICTION HAS BEEN FILED
AGAINST APPLICANT, AND, IN EITHER CASE, ALL APPLICABLE CURE PERIODS WITH
RESPECT THERETO UNDER THE LEASE, DATED NOVEMBER            , 2009, AS AMENDED, BETWEEN
BENEFICIARY, AS LANDLORD, AND APPLICANT, AS TENANT HAVE EXPIRED.”





PAGE 1 OF 3









 
			
	L/C DRAFT LANGUAGE APPROVED FOR ISSUANCE BY: 	

 
(Authorized Signature)	 





DATE:                                          








-A-33-









 





IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVBSF                    




DATED                     , 2009



THE LEASE AGREEMENT MENTIONED ABOVE IS FOR IDENTIFICATION PURPOSES ONLY AND IT IS NOT INTENDED THAT
SAID LEASE AGREEMENT BE INCORPORATED HEREIN OR FORM PART OF THIS LETTER OF CREDIT.



PARTIAL DRAWS ARE ALLOWED. THIS LETTER OF CREDIT MUST ACCOMPANY ANY DRAWINGS HEREUNDER
FOR ENDORSEMENT OF THE DRAWING AMOUNT AND WILL BE RETURNED TO THE BENEFICIARY UNLESS IT
IS FULLY UTILIZED.



DRAFT(S) AND DOCUMENTS MUST INDICATE THE NUMBER AND DATE OF THIS LETTER OF CREDIT.



THIS
LETTER OF CREDIT SHALL BE AUTOMATICALLY EXTENDED FOR AN ADDITIONAL PERIOD OF ONE YEAR, WITHOUT
AMENDMENT, FROM THE PRESENT AND/OR EACH FUTURE EXPIRATION DATE UNLESS AT LEAST SIXTY (60) DAYS
PRIOR TO THE THEN CURRENT EXPIRATION DATE WE SEND YOU A NOTICE BY OVERNIGHT COURIER SERVICE AT THE
ABOVE ADDRESS THAT THIS LETTER OF CREDIT WILL NOT BE EXTENDED BEYOND THE CURRENT EXPIRATION DATE.
IN THAT EVENT, YOU MAY DRAW HEREUNDER ON OR PRIOR TO THE THEN EXPIRATION DATE THE AMOUNT AVAILABLE
UNDER THIS LETTER OF CREDIT BY MEANS OF YOUR SIGHT DRAFT DRAWN ON US ACCOMPANIED BY THE DOCUMENTS
LISTED ABOVE. IN NO EVENT SHALL THIS LETTER OF CREDIT BE
AUTOMATICALLY EXTENDED BEYOND JANUARY 29,
2017 WHICH SHALL BE THE FINAL EXPIRATION DATE OF THIS LETTER OF CREDIT..



THIS LETTER OF CREDIT IS TRANSFERABLE BY THE ISSUING BANK AT THE REQUEST OF BENEFICIARY ONE OR MORE
TIMES BUT IN EACH INSTANCE TO A SINGLE BENEFICIARY AND ONLY IN ITS ENTIRETY UP TO THE THEN
AVAILABLE AMOUNT IN FAVOR OF ANY NOMINATED TRANSFEREE ASSUMING SUCH TRANSFER TO SUCH TRANSFEREE
WOULD BE IN COMPLIANCE WITH THEN APPLICABLE LAW AND REGULATIONS, INCLUDING BUT NOT LIMITED TO THE
REGULATIONS OF THE U.S. DEPARTMENT OF TREASURY AND U.S. DEPARTMENT OF COMMERCE. AT THE TIME OF
TRANSFER, THE ORIGINAL LETTER OF CREDIT AND ORIGINAL AMENDMENT(S), IF ANY, MUST BE SURRENDERED TO
US TOGETHER WITH OUR LETTER OF TRANSFER DOCUMENTATION (IN THE FORM OF
EXHIBIT “B” ATTACHED HERETO).
OUR TRANSFER FEE OF 1⁄4 OF 1%  OF THE TRANSFER AMOUNT (MINIMUM $250.00) WILL BE PAID BY THE
BENEFICIARY. ANY TRANSFER OF THIS LETTER OF CREDIT MAY NOT CHANGE THE PLACE OF EXPIRATION OF THE
LETTER OF CREDIT FROM OUR ABOVE-SPECIFIED OFFICE. EACH TRANSFER SHALL BE EVIDENCED BY OUR
ENDORSEMENT ON THE REVERSE OF THE ORIGINAL LETTER OF CREDIT AND WE SHALL FORWARD THE ORIGINAL
LETTER OF CREDIT TO THE TRANSFEREE.



ALL DEMANDS FOR PAYMENT SHALL BE MADE BY PRESENTATION OF THE ORIGINAL APPROPRIATE DOCUMENTS TO
US BY OVERNIGHT COURIER SERVICE ON A BUSINESS DAY AT OUR OFFICE (THE “BANK’S OFFICE”) AT:
SILICON VALLEY BANK, 3003 TASMAN DRIVE, SANTA CLARA, CA 95054, ATTENTION: STANDBY LETTER OF
CREDIT NEGOTIATION SECTION.



THIS IRREVOCABLE LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING, AND SUCH
UNDERTAKING SHALL NOT IN ANY WAY BE LIMITED, MODIFIED, AMENDED OR AMPLIFIED, EXCEPT BY A WRITTEN
DOCUMENT EXECUTED BY THE PARTIES HERETO.



WE HEREBY AGREE WITH THE DRAWERS, ENDORSERS AND BONA FIDE HOLDERS THAT THE DRAFTS DRAWN UNDER AND
IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT SHALL BE DULY HONORED UPON
PRESENTATION TO THE DRAWEE, IF NEGOTIATED ON OR BEFORE THE EXPIRATION DATE OF THIS CREDIT.




PAGE 2 OF 3








 
			
	L/C DRAFT LANGUAGE APPROVED FOR ISSUANCE BY: 	

 
(Authorized Signature)	 





DATE:                                          









-A-34-









 








IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVBSF                     




DATED                     , 2009



IF ANY INSTRUCTIONS ACCOMPANYING A DRAWING UNDER THIS LETTER OF CREDIT REQUEST THAT PAYMENT IS TO
BE MADE BY TRANSFER TO YOUR ACCOUNT WITH ANOTHER BANK, WE WILL ONLY EFFECT SUCH PAYMENT BY FED WIRE
TO A U.S. REGULATED BANK, AND WE AND/OR SUCH OTHER BANK MAY RELY ON AN ACCOUNT NUMBER SPECIFIED IN
SUCH INSTRUCTIONS EVEN IF THE NUMBER IDENTIFIES A PERSON OR ENTITY DIFFERENT FROM THE INTENDED
PAYEE.



EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS IRREVOCABLE LETTER OF CREDIT IS SUBJECT TO
THE “INTERNATIONAL STANDBY PRACTICES” (ISP98) INTERNATIONAL CHAMBER OF COMMERCE (PUBLICATION
NO. 590).”




	 	 	 	 	 
	SILICON VALLEY BANK
	 	 	 	 
	 
	 	 	 	 
	 
	 

AUTHORIZED SIGNATURE

	 	 

AUTHORIZED SIGNATURE
	 	 






PAGE 3 OF 3








 
			
	L/C DRAFT LANGUAGE APPROVED FOR ISSUANCE BY: 	

 
(Authorized Signature)	 





DATE:                                          








-A-35-









 




EXHIBIT “A”







	 	 	 
	DATE:                     
	 	REF. NO.                     




At sight of this draft


Pay
 to the order of                                          us$                    



			
	USDOLLARS 	 

	 
	 




DRAWN UNDER SILICON VALLEY BANK, SANTA CLARA, CALIFORNIA, STANDBY
LETTER OF CREDIT NUMBER NO.
                     DATED                     



	 	 	 	 	 	 	 
	To:
	 	silicon valley bank	 	 	 	 
	 
	 	3003 tasman drive	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	santa clara, ca 95054
	 	 	 	(BENEFICIARY’S NAME)
	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	Authorized Signature





GUIDELINES TO PREPARE THE DRAFT



	1.	 	DATE: ISSUANCE DATE OF DRAFT.
	 
	2.	 	REF. NO.: BENEFICIARY’S REFERENCE NUMBER, IF ANY.
	 
	3.	 	PAY TO THE ORDER OF: NAME OF BENEFICIARY AS INDICATED IN THE L/C (MAKE
SURE BENEFICIARY ENDORSES IT ON THE REVERSE SIDE).
	 
	4.	 	US$: AMOUNT OF DRAWING IN FIGURES.
	 
	5.	 	USDOLLARS: AMOUNT OF DRAWING IN WORDS.
	 
	6.	 	LETTER OF CREDIT NUMBER: SILICON VALLEY BANK’S STANDBY L/C NUMBER THAT PERTAINS TO
THE DRAWING.
	 
	7.	 	DATED: ISSUANCE DATE OF THE STANDBY L/C.
	 
	8.	 	BENEFICIARY’S NAME: NAME OF BENEFICIARY AS INDICATED IN THE L/C.
	 
	9.	 	AUTHORIZED SIGNATURE: SIGNED BY AN AUTHORIZED SIGNER OF BENEFICIARY.



IF YOU NEED FURTHER ASSISTANCE IN COMPLETING THIS DRAFT, PLEASE CALL OUR L/C PAYMENT SECTION
AND ASK FOR:



ALICE DA LUZ: 408-654-7120

EFRAIN TUVILLA: 408-654-6349








			
	L/C DRAFT LANGUAGE APPROVED FOR ISSUANCE BY: 	

 
(Authorized Signature)	 




DATE:                                          



-A-36-







 





EXHIBIT “B”




DATE:




	 	 	 	 	 	 	 
	TO:

	 	SILICON VALLEY BANK 
3003 TASMAN
DRIVE 
SANTA CLARA, CA 95054

ATTN:INTERNATIONAL DIVISION. 
            STANDBY
LETTERS OF CREDIT
	 	RE:
	 	IRREVOCABLE STANDBY LETTER OF CREDIT NO.
ISSUED BY
SILICON VALLEY BANK, SANTA CLARA L/C
AMOUNT:






GENTLEMEN:




FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:




(NAME OF TRANSFEREE)

(ADDRESS)



ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF CREDIT UP TO ITS
AVAILABLE AMOUNT AS SHOWN ABOVE AS OF THE DATE OF THIS TRANSFER.



BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF CREDIT ARE
TRANSFERRED TO THE TRANSFEREE. TRANSFEREE SHALL HAVE THE SOLE RIGHTS
AS BENEFICIARY THEREOF,
INCLUDING SOLE RIGHTS RELATING TO ANY AMENDMENTS, WHETHER INCREASES OR EXTENSIONS OR OTHER
AMENDMENTS, AND WHETHER NOW EXISTING OR HEREAFTER MADE. ALL
AMENDMENTS ARE TO BE ADVISED DIRECT TO THE TRANSFEREE WITHOUT
NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.




THE ORIGINAL OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO ENDORSE THE
TRANSFER ON THE REVERSE THEREOF, AND FORWARD IT DIRECTLY TO THE TRANSFEREE WITH YOUR
CUSTOMARY NOTICE OF TRANSFER.





SINCERELY,




	 	 	 	 	 
	 

(BENEFICIARY’S NAME)

	 	 	 	 
	 
	 	 	 	 
	 

(SIGNATURE OF BENEFICIARY)

	 	 	 	 
	 
	 	 	 	 
	 

(NAME AND TITLE)

	 	 	 	 














SIGNATURE AUTHENTICATED



The name(s), title(s), and signature(s) conform
to that/those on file with us for the company
and the signature(s) is/are authorized to
execute this instrument. 

We further confirm
that the company has been identified applying
the appropriate due diligence and enhanced due
diligence as required by BSA and all its
subsequent amendments.




	 
	 

	(Name of Bank)

	 

	 

	(Address of Bank)

	 

	 

	(City, State, ZIP Code)

	 

	 

	(Authorized Name and Title)

	 

	 

	(Authorized Signature)

	 

	 

	(Telephone number)



















 
			
	L/C DRAFT LANGUAGE APPROVED FOR ISSUANCE BY: 	

 
(Authorized Signature)	 







DATE:                                          








-A-37-









 





APPENDIX 4.2

CLEANING SPECIFICATIONS





	A.	 	Premises Office Area
	 
	 	 	Daily: (Monday through Friday, inclusive, holidays excepted).






	 	1.	 	Empty and clean waste receptacles and ash trays and remove waste material from
the Premises and wash receptacles as necessary.
	 
	 	2.	 	Sweep and dust mop uncarpeted areas using a dust-treated mop.
	 
	 	3.	 	Vacuum rugs and carpeted areas.
	 
	 	4.	 	Wash clean water fountains, if any.
	 
	 	5.	 	Hand dust grill work within normal reach.
	 
	 	6.	 	Upon completion of cleaning, lights will be turned off and doors locked,
leaving the Premises in an orderly condition.
	 
	 	7.	 	Spot clean interior glass.






	 	 	Weekly:






	 	1.	 	Dust exposed coat racks and the like.
	 
	 	2.	 	Remove finger marks from private entrance doors, light switches and doorways.






	 	 	Quarterly:
	 
	 	 	High dusting not reached in daily cleaning to include:






	 	1.	 	Dusting pictures, frames, charts, graphs and similar wall hangings.
	 
	 	2.	 	Dusting vertical surfaces, such as walls, partitions, doors and ducts.
	 
	 	3.	 	Dusting of pipes, ducts, and high moldings.
	 
	 	4.	 	Dusting of horizontal blinds.






	B.	 	Premises Lavatories, if any
	 
	 	 	Daily: (Monday through Friday, inclusive, holidays excepted.)






	 	1.	 	Sweep and damp mop floors.
	 
	 	2.	 	Clean mirrors, powder shelves, dispensers and receptacles, bright work,
flushometers, piping and toilet seat hinges.
	 
	 	3.	 	Wash both sides of toilet seats.




-A-38-









 






	 	4.	 	Wash basins, bowls and urinals.
	 
	 	5.	 	Dust and clean powder room fixtures.
	 
	 	6.	 	Empty and clean paper towel and sanitary disposal receptacles.
	 
	 	7.	 	Remove waste paper and refuse.
	 
	 	8.	 	Refill tissue holders, soap dispensers, towel dispensers, vending sanitary
dispensers; materials to be furnished by Landlord.
	 
	 	9.	 	A sanitizing solution will be used in all lavatory cleaning.






	 	 	Monthly:






	 	1.	 	Wash partitions and tile walls in lavatories.






	 	 	Quarterly






	 	1.	 	Machine scrubbing of lavatory floors






	C.	 	Window Cleaning
	 
	 	 	Windows of exterior walls will be washed once annually, subject to weather conditions and
requirements of applicable law.





-A-39-









 




APPENDIX 7.1

FORM OF SNDA


     This SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”) made as of the
                     day of November, 2009, by and between ACME PACKET, INC., a Delaware corporation, having an
address of 71 Third Avenue, Burlington, Massachusetts 01803 (“Lessee”) and ANGLO IRISH BANK
CORPORATION LIMITED, formerly known as Anglo Irish Bank Corporation plc, a private limited company
incorporated under the laws of Ireland, having its registered office at Stephen Court, 18/21 St.
Stephen’s Green, Dublin 2, Ireland (“Mortgagee”).


     WHEREAS, Mortgagee has made a mortgage loan to MSCP CROSBY, LLC, a Delaware limited liability
company (“Lessor”), secured by a Mortgage and Security Agreement, dated as of August 22, 2007 and
recorded prior hereto (the “Mortgage”) on land owned by Lessor located at 100 Crosby Drive,
Bedford, Massachusetts (the “Premises”), upon which is situated an approximately 261,961 square
foot building (hereinafter referred to as the “Building”); and


     WHEREAS, Lessee has entered into a written lease dated November 23, 2009 (the “Lease”) with
Lessor for a portion of the Building containing approximately 123,788 square feet of space (the
“Demised Premises”).


     NOW, THEREFORE, in consideration of the mutual covenants herein contained, Lessee and
Mortgagee do hereby agree as follows:



	 	1.	 	Lessee and Mortgagee hereby consent and agree that:




          (a) subject to the terms and conditions of this Agreement, the Lease shall be, and the same
hereby is, made subordinate in each and every respect to the lien of the Mortgage and to all
advances made thereunder and to all extensions, renewals and modifications thereof and amendments
thereto;



          (b) any of the foregoing notwithstanding, if the interests of Lessor in the Premises shall be
acquired by Mortgagee by reason of foreclosure of the Mortgage or other proceedings brought to
enforce the rights of Mortgagee, by deed in lieu of foreclosure or by any other method under or
pursuant to the Mortgage, or acquired by any other purchaser or purchasers pursuant to a
foreclosure sale (Mortgagee or such purchaser(s), as the case may be, being referred to as
“Purchaser”), (i) the Lease and the rights of Lessee thereunder shall continue in full force and
effect and shall not be terminated or disturbed, except in accordance with the terms of the Lease,
and (ii) Mortgagee will not join Lessee as a party defendant in any action or proceeding to
foreclose the Mortgage. Lessee shall be bound to
Purchaser, and Purchaser shall be bound to Lessee, under all of the terms, covenants, and
conditions of the Lease for the balance of the term thereof remaining, and any extensions or
renewals thereof which may be effected in accordance with any option therefor contained in the
Lease, with the same force and effect as if Purchaser were the lessor under the Lease;
provided that:




	 	(i)	 	Lessee is not in default, beyond the expiration
of any applicable grace or notice period, under any provision of the
Lease or this Agreement at the time Mortgagee exercises any such right,
remedy, or privilege;
	 
	 	(ii)	 	the Lease at that time is in force and effect
according to its original terms or with such amendments or
modifications as Mortgagee shall have approved or been deemed to have
approved as provided below; and




-A-40-







 






	 	(iii)	 	Lessee attorns to Purchaser as provided below;





          (c) in the event of any foreclosure of the Mortgage by Mortgagee, its successors or assigns,
or at the request of Mortgagee at any time pursuant to the assignment of the Lease to Mortgagee or
upon Mortgagee’s acquisition of fee title to the Premises, Lessee will recognize Mortgagee, its
successors and assigns, as the new lessor under the Lease and will attorn to and continue to be
bound by each and every term of the Lease; and upon such attornment, the Lease and the rights of
Lessee shall continue in full force and effect as if it were a direct Lease between Mortgagee, or
any Purchaser, and Lessee upon all of the terms, covenants and conditions of the Lease for the
balance of the term thereof remaining and any extensions or renewals thereof which may be effected
in accordance with any option therefor contained in the Lease; provided, however,
Mortgagee, or any Purchaser, shall not be:





	 	(i)	 	liable for any act or omission of any prior
landlord (including Lessor), except for defaults under the Lease that
continue beyond the date Mortgagee or Purchaser, as the case may be,
acquires fee title to the Premises and further provided that Mortgagee
or Purchaser, as the case may be, has received written notice of such
default and an opportunity to cure pursuant to Section 5 of this
Agreement; or
	 
	 	(ii)	 	subject to any offsets or defenses which Lessee
might have against any prior landlord (including Lessor), except for
offsets and abatements expressly permitted by the terms of the Lease
and of which Lessee has delivered notice thereof to Mortgagee
contemporaneously with Lessee’s notice to Lessor; or
	 
	 	(iii)	 	bound by any rent or additional rent which
Lessee might have paid for more than one (1) month in advance to any
prior landlord (including Lessor); or
	 
	 	(iv)	 	bound by any amendment or modification of the
Lease not specifically contemplated by the express terms and conditions
of the Lease made without Mortgagee’s written consent (which shall not
be unreasonably withheld), to the extent such consent is required under
the Mortgage or this Agreement; or
	 
	 	(v)	 	liable for any security deposit or other sums
held by any prior landlord (including Lessor) not actually received by
Mortgagee; or
	 
	 	(vi)	 	expect as provided for in the Lease, required
to rebuild or repair the Building or any part thereof in the event of
casualty damage to or condemnation of any material portion of the
Building or the Demised Premises; or
	 
	 	(vii)	 	required, or liable for any obligation of
Lessor under the Lease, to complete construction of or improvements to
the Demised Premises and/or the Building, except for the Landlord’s
Work; and





          (d) Mortgagee may at any time unilaterally subordinate (or cause to be subordinated) the lien
of the Mortgage on the Premises to the Lease.




-A-41-









 




     2. Lessee hereby: (a) acknowledges receipt of notice that pursuant to an Assignment of Leases
and Rents from Lessor, all leases and rents involving the Building, including the Lease of Lessee,
are assigned to Mortgagee as security for its loan; (b) acknowledges that it has received no notice
of any sale, transfer or assignment of the Lease or of rentals thereunder by Lessor, other than
pursuant to said Assignment of Leases and Rents; and (c) agrees that it will not join in any
material change or modification of the Lease, anticipate rentals thereunder or agree to terminate
the Lease or surrender said Premises, without the prior written consent of Mortgagee, except in
each case, to the extent specifically permitted by the express terms and conditions of the Lease
(and in the case of any other change or modification of the Lease, such consent shall not be
unreasonably withheld, to the extent such consent is required under the Mortgage, this Agreement or
any other loan documents).


     3. Lessee hereby agrees that upon Mortgagee’s written demand, it will make all payments of
rent then and thereafter due to Lessor directly to Mortgagee and not to Lessor or any independent
rental agent which Lessor might at any time utilize. Lessor hereby agrees to the foregoing and
authorizes Lessee to comply with such demand.


     4. Lessee hereby agrees that the interest of the Lessor in the Lease has been assigned to
Mortgagee solely as security for the purposes indicated in the said instrument of assignment, and
that, until such time as Mortgagee has taken possession of the Premises and exercised its rights
under said Assignment, Mortgagee assumes no duty, liability or obligation whatever under the Lease,
or any extension or renewal thereof, by virtue of said assignment.


     5. Lessee hereby: (a) agrees to notify Mortgagee, its successors and assigns, in writing at
the notice address set forth above for Mortgagee, or at any other address specified in writing to
Lessee, of any default on the part of Lessor under the Lease; and (b) grants to Mortgagee, its
successors and assigns, the right and opportunity to cure any such default within the same grace
period as is given to Lessor for remedying such default, plus, in each case, an additional period
of thirty (30) days after the later of (i) the expiration of such grace period, or (ii) the date on
which Lessee has served notice of such default upon Mortgagee, its successors or assigns.
Notwithstanding the foregoing, nothing contained in this Section 5 shall limit or modify any
abatement, offset or self-help rights of Lessee to the extent that the same is expressly provided
for in the Lease.


     6. Any notice, request, demand, statement or consent made hereunder shall be in writing and
shall be deemed to have been duly given upon receipt if delivered by hand or two days after the
same is mailed, by registered mail, return receipt requested, postage prepaid, or one day after the
same is sent by a nationally recognized courier service that regularly maintains records of items
picked up and delivered, as follows:

If to Lessor:


MSCP Crosby, LLC

c/o Divco Real Estate Services

575 Market Street, 35th Floor

San Francisco, California 94101


Attn: Keith Wallace


Copy to:


Gibson, Dunn & Crutcher LLP

One Montgomery Street, Suite 3100

San Francisco, CA 94104

Attn: Marisa A. Deutsch, Esq.


-A-42-







 




If to Mortgagee:


Anglo Irish Bank Corporation Limited

Stephen Court

18/21 St. Stephen’s Green

Dublin 2, Ireland

Attn: Owen O’Neill, Director


Copy to:


Anglo Irish Bank Corporation Limited

265 Franklin Street, 19th Floor

Boston, Massachusetts 02110

Attn: Raymond Clark


and


Sullivan & Worcester LLP

1290 Avenue of the Americas, 29th Floor

New York, New York 10104

Attn: Karen M. Kozlowski, Esq.


If to Lessee:


Prior to the Lease Commencement Date:


71 Third Avenue

Burlington, MA 01803

Attention: Mr. Robert G. Ory


Copy to:


Bingham McCutchen LLP

One Federal Street

Boston, Massachusetts 02110-1726

Attention: Edward A. Saxe, Esq.


From and after the Lease Commencement Date:


100 Crosby Drive

Bedford, MA 01730

Attention: Mr. Robert G. Ory


Copy to:


Bingham McCutchen LLP

One Federal Street

Boston, Massachusetts 02110-1726

Attention: Edward A. Saxe, Esq.



-A-43-








 








     7. This Agreement shall be binding upon and shall inure to the benefit of Lessee, Mortgagee
and Lessor and their respective heirs, executors, administrators, successors and assigns, as the
case may be.



     8. Each person executing this Agreement on behalf of Lessee, Mortgagee and Lessor,
respectively, has the full power, authority and legal right to execute this Agreement on behalf of
such party.



     9. This Agreement may not be modified, amended, changed or terminated except by an agreement
in writing signed by all the parties hereto.



     10. This Agreement may be executed in any number of duplicate originals and each such
duplicate original shall be deemed to constitute but one and the same instrument.



     11. This Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, without regard to its conflicts or choice of laws principles.



[signatures on following page]




-A-44-









 




     IN WITNESS WHEREOF, the parties hereto have executed this Agreement, under seal, as of the day
and year first written above.


	 	 	 	 	 
	 	LESSEE:


ACME PACKET, INC., a Delaware corporation

 	 
	 	By:  	/s/
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	LESSOR:

MSCP CROSBY, LLC, a Delaware limited liability

company

 	 
	 	By:  	Divco West Real Estate Services, Inc., its agent
 	 


	 	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	MORTGAGEE:


ANGLO IRISH BANK CORPORATION LIMITED

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



-A-45-







 





	 	 	 
	COMMONWEALTH OF MASSACHUSETTS
	 	) 
	 
	 	) SS:
	COUNTY OF                                         
	 	) 




     On this                      day of November, 2009, before me, the undersigned                     , personally
appeared                      as a                      for ACME PACKET, INC., a Delaware
corporation, proved to me through satisfactory evidence of identification, which were
                    , to be the person whose name is signed on the preceding or attached
document, and acknowledged to me that he/she signed it voluntarily for its stated purpose.


	 	 	 	 	 
	 
	 	 

(official signature and seal of notary)
	 	 
	 
	 	 	 	 
	 
	 	My commission expires:	 	 
	 
	 	 	 	 
	 
	 	 	 	 




	 	 	 
	STATE OF CALIFORNIA
	 	) 
	 
	 	) SS:
	COUNTY OF                                         
	 	) 




     On this                      day of November, 2009, before me, the undersigned notary public, personally
appeared                      as the                      of Divco West Real Estate Services, Inc., a
corporation, as agent for MSCP CROSBY, LLC, a Delaware limited liability company, proved to me
through satisfactory evidence of identification, which were                                         , to be the
person whose name is signed on the preceding or attached document, and acknowledged to me that
he/she signed it voluntarily for its stated purpose.


I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.


	 	 	 	 	 
	 
	 	 

(official signature and seal of notary)
	 	 
	 
	 	 	 	 
	 
	 	My commission expires	 	 
	 
	 	 	 	 
	 
	 	 	 	 




-A-46-








 





	 	 	 
	Commonwealth of Massachusetts
	 	) 
	 
	 	) ss:
	County of Suffolk
	 	) 




     On this                      day of                     , 2009, before me, the undersigned                  
   ,
personally appeared                      as a                      for Anglo Irish Bank Corporation
Limited, a private limited company incorporated under the laws of the Republic of Ireland, proved
to me through satisfactory evidence of identification, which were                     , to be
the person whose name is signed on the preceding or attached document, and acknowledged to me that
he/she signed it voluntarily for its stated purpose.


	 	 	 	 	 
	 
	 	 

(official signature and seal of notary)
	 	 
	 
	 	 	 	 
	 
	 	My commission expires:	 	 
	 
	 	 	 	 
	 
	 	 	 	 




-A-47-